Himachal Pradesh High Court
M/S Andritz Hydro Pvt. Ltd vs Sjvn Ltd. Through Its General Manager ... on 6 November, 2018
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
CWP No. 1204 of 2018
Reserved on:01.10.2018
Date of Decision: November 6, 2018
M/s Andritz Hydro Pvt. Ltd. ...Petitioner.
Versus
SJVN Ltd. through its General Manager (ECD)
& another ..Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1Yes
For the Petitioner: Dr.Ashwani Kumar and Mr.B.C. Negi, Sr.
Advocates with M/s Sangeeta Bharti,
Ashish Kumar, Brijesh Anand, Rahul Tyagi
& Raj Negi, Advocates, for the petitioner.
For the Respondents: Mr.K.T.S. Tulsi & Mr.Ramakant Sharma,
Sr.Advocates with M/s Gaurave Bhargava,
Raj Singh Niranjan & Basant Thakur,
Advocates, for respondent No.1.
Mr.Rajiv Nayyar & Mr.Naresh K. Sood,
Sr.Advocates, with M/s Omar Ahmad,
Ishan Gaur, Sumer Seth & Rohit Chauhan,
Advocates, for respondent No.2.
Ajay Mohan Goel, J.
The central issue, which arises for consideration in the present petition, is as to whether the bid submitted by M/s Voith Hydro Ltd. (respondent No.2) contained variation/deviation of a critical provision and as to whether act of SJVN Ltd (respondent No.1), in accepting such bid, in 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 2any manner, has unfairly affected the competitive position of petitioner M/s Andirtz Hydro Pvt. Ltd.
2. Briefly stated, the facts are as under.
.
On 26.9.2017, SJVN Ltd. invited bids for
3. construction of project, termed as 'Naitwar Mori Hydro Electric Project (2x30) 60 MW, Mori, District Uttarkashi, Uttarakhand (India)'. The Bid Document, contained the instructions to bidder, which is commonly termed as 'Instructions to Bidder (ITB)'. All the bids were required to be filled up in the mode and manner prescribed therein.
4. It is not in dispute that four parties, including the writ petitioner M/s Andritz Hydro Pvt. Ltd. (hereinafter referred to as the petitioner) and respondent No.2 M/s Voith Hydro Ltd. (hereinafter referred to as Voith), submitted such bids. It is also not in dispute that bids were to be submitted online, in terms of Clause-21 of ITB. The Bid Document, inter alia, was to contain Envelope-1 (containing the qualification particulars and Techno Commercial Bid), and Evnelope-2 (Price Bid). It is not in dispute that alongwith Envelope-1, all attachments, except Attachment 8(ii), were to be uploaded. It is also not in dispute that Voith uploaded Attachment 8(ii) alongwith Envelope-1, though it was supposed to be attached with Envelope-2 (Price Bid).
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 35. The Technical Bid was opened on 28.2.2018. It is the claim of the petitioner that on the said date, SJVN found the Bid of Voith to be non-responsive, but however, there is .
no document evidencing such fact and the same is denied by respondents.
6. It is not in dispute that on 18.5.2018, Bids of all the Techno Commercial Responsive Bidders were opened and the Bid of Voith was found to be lowest. On opening, Andritz the Price Bids of the Bidders, were found to be as under:
r Voith BHEL GE
INR INR INR INR
1,465,817,074 1,177,757,996 1,666,871,562 1,549,621,393
7. However, prior thereto on 16.5.2018, vide written communication dated 16.05.2018, the petitioner, suggesting that the Bid of Voith was found to be non-
responsive on account of deviation of price adjustment clauses, desired furnishing of list of qualified bidders. It be also noticed that vide another communication dated 18.5.2018 (Annexure P-7), the petitioner claiming the Bid of Voith to be non-responsive, requested the same to be rejected with a further request to award the project to other lowest bidder.
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 48. Not finding favour with the claim set up by the petitioner, vide communication dated 22.5.2018 (Annexure P-1), SJVN rejected such claim.
.
It is in this backdrop, the petitioner field the
9. instant petition on 26.5.2018.
10. At this juncture, it be also observed that during the pendency of the present petition, Bid of Voith stood accepted by SJVN.
11. As per Clause 5(i) - Qualification of Bidder of the ITB, the Bidder was required to submit a declaration as per proforma given in Attachment confirming that the bid submitted by the Bidder is strictly in conformity with the documents issued by the Employer.
12. As per Clause 13, termed as "Documents comprising the Bid" of the ITB, the Bid submitted by the Bidder was to comprise the documents in the manner specified therein. Each Bidder was required to submit its Bid, attaching certain documents. Here we are concerned with Attachment-8, which is reproduced as under:
"Attachment 8: Deviations In order to facilitate evaluation of bids, variations & deviations, if any, (except critical provisions) from the requirements of the conditions of Contract, Bid Data Sheet and other Commercial conditions, Technical Specifications and Drawings shall be listed in Attachment-8(i) and the withdrawal cost for the same shall be ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 5 listed in Attachment-8(ii) as provided in bid document. The deviations listed elsewhere in the bid shall not be given any cognizance and shall be treated as deemed to be withdrawn. The Bidder has to provide the additional price, for withdrawal .
of the variations and deviations indicated therein.
In particular, Bids with deviations from, objections to or reservations on provision such as those concerning Bid security/EMD, Bid validity, Defects Liability, Idemnity and on provisions mentioned below, if any, will be treated as non- responsive.
Bids containing deviations from critical provisions relating to GC Clause 11.0 (Contract Price), 12.0 (Terms of Payment), 13.3 (Performance Security), 14 (Taxes and Duties), 27.0 (Defects Liability), 29.0 (Patent Inemnity) 30 (Limitation of Liability), 40 (Extension of Time for Completion), 45 & 46 (Claims, Disputes and Arbitration), Appendix-2 (Price Adjustment) and Functional Guarantees will be considered as non-
responsive. The above list is illustrative only and not exhaustive.
However, the bidders wishing to propose deviations to any of the provisions other than those mentioned above, must provide in the Attachment-8(i) without cost of withdrawal and in Attachment-8(ii) of the bid with cost of withdrawal of each of such deviations. If such deviations are not priced, cost of withdrawal of such deviations shall be treated as 'NIL'. The evaluated cost of the bid shall include the cost of withdrawal of the deviations from the above provisions to make the bid fully compliant with these provisions. The deviations listed without any cost and not accepted by Employer shall have to be withdrawn by the bidder without any financial implications to Employer before opening of price bid. In case of non-withdrawal of such deviations, the bid shall be rejected being non-responsive.
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 6At the time of Award of Contract, if so desired by the Employer, the bidder shall withdraw these deviations listed in Attachment-8(i) and 8(ii) at the cost of withdrawal stated by him in the bid. In case the bidder does not withdraw the deviations .
proposed by him, if any, at the cost of withdrawal stated by him in the bid, his bid will be rejected. However, the attention of the bidders is drawn to the provisions of preliminary examination of bids regarding the rejection of bids that are not substantially responsive to the requirements of the bidding documents.
Regarding deviations, conditionality or reservations introduced in the bid, which will be reviewed to conduct a determination of substantial responsiveness of the Bidder's bid as stated in ITB Clause 13.2(h) above, the order of precedence of these documents to address contradictions, if any, in the contents of the bid, shall be as follows:
I. Deviation Attachment 8(i) & 8(ii).
II. Letter of tender.
III. Price Schedule.
IV. Technical Data Sheet.
V. Any other part of the bid.
Contents of the document at Sr. No. 1
above will have overriding precedence over other documents (Sr. No. II to V above). Similarly, contents of document at Sr. No. II above will have overriding precedence over other documents (Sr. No. III to V above) and so on.
.........."
13. As per Clause 21.1, preparation, uploading and submission of bids was to be in the format prescribed therein. There was to be online submission of the Bid in two ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 7 envelopes. Envelope-1, was to contain Qualifications, Particulars and Techno Commercial Bid, and Envelope-2, which was to be termed as "Price Bid", was to be submitted .
in consonance with Clause 21.3.
14. As per Clause 25, termed as "Bid Opening", the Price Bids of the Bidders, whose Bids were not found to be technically responsive were not to be considered for opening.
15.
Bids and determination r to Clause 28 dealt with "preliminary examination of of responsiveness", which is reproduced as under:
"28. 28.1 The basis and methodology for evaluation of Preliminary the Qualification Particulars and techno- examination of commercial bids shall generally be as Bids And described in the supplement to instructions Determination to Bidders attached as Annexure -B to these of ITB. The Employer will examine the bids to Responsivenes determine whether they are complete, s whether any computational errors have been made, whether required securities and cost of Bid Document have been furnished, whether the documents have been properly signed, whether all the requisite declaration, undertakings have been furnished and whether the bids are generally in order.
28.2 The Price Bid duly filled in electronic form in conformity with the tender specification on the portal only. The Price Schedule is to be filled in for filling rates of the items to be filled in by the Bidder. The calculation of amount by multiplying the quantities with the rates filled in by the bidder, sub-totals, total etc. shall be done by the formulae already provided in electronic form. In case of any discrepancy in the calculations, the rates ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 8 shall be considered final and the amount calculated by using the same shall be corrected and considered as final. Where ever prices for items is left blonk, in the Price Schedule, it shall be deemed to have been included in other items.
.
28.3 The Employer may waive any minor informality, non-conformity or irregularity in a bid that does not constitute a material deviation and that does not prejudice or affect the relative ranking of any Bidder as a result of the evaluation of Bids, pursuant to these Clauses.
28.4 Prior to the detailed evaluation, the Employer will determine whether each Bid is of acceptable quality, is complete and is substantially responsive to the Bid Documents. For purposes of this determination, a substantially responsive Bid r is one that conforms to all the terms, conditions and specifications of the Bid Documents without material deviations, objections, conditionalities or reservations. A material deviation, objection, conditionality or reservation is one (I) that affects in any substantial way the scope, quality or performance of the Contract; (ii) that limits in any substantial way, inconsistent with the Bid Documents, the Employer's rights or the successful Bidder's obligations under the Contract; or (iii) whose rectification would unfairly affect the competitive position of other Bidders who are presenting substantially responsive bids.
The Employer's determination of a Bid's responsiveness is to be based on the content of the Bid itself without recourse to extrinsic evidence.
28.5 If a Bid is not substantially responsive, it will
be rejected by the Employer and may not
subsequently be made responsive by
correction or withdrawal of the
nonconforming deviation or reservation. 28.6 All the bidders shall be informed, about their status of qualification/disqualification/techno- commercial responsiveness, in a single letter.::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 9
16. Clause 30 dealt with "Evaluation and Comparison of Bids". Clause 30.4 provided that after arriving at L1 evaluated bid price through e-tender, the qualified bidders .
shall participate in E-Reverse auction process, as envisaged therein.
17. Similarly, Clause 31, which envisaged award of contract, provided that subject to the provisions contained in Clause 32, the employer will award the contract to the
18. to Bidder meeting the specified qualifying requirements.
As much emphasis is laid on non-compliance of the Bid Document, the prescribed format with regard to Attachment 8 (i) and Attachment 8(ii), we deem it appropriate to reproduce the same as under:
"ATTACHMENT -8(i) ELECTRO MECHANICAL PACKAGE FOR NAITWAR MORI HYDRO ELECTRIC PROJECT 60(2X30) MW List of Deviations without Cost of Withdrawal (To be furnished by the Bidders alongwith Techno-commercial bid) (Bidder's Name & Address):
To:.................................. (Name of the Employer) Dear Sir, Following are the deviations proposed by us as per ITB Clause 13.2
(h) S. No. Clause No. Deviation Remarks/Justifications ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 10 Note :
1. We hereby confirm that all the deviations specified as above in Attachment-8(i) are the same which have been mentioned in Attachment-8(ii) alongwith its cost of withdrawal.
2. We hereby confirm our acceptance and compliance to the .
critical provisions of GC clauses listed in ITB clause 13.2(h).
Date: ................ (Signature)..................................... Place ................ (Printed Name)...............................
(Designation).................................
(Common Seal)...............................
Bid Document for EM Works of Section-VII Page 16 of 227"
NMHEP (2x30) 60MW No. SJVN/ CC/ (Attachments) ECD/ NMHEP/EM/17 r "ATTACHMENT -8(ii) ELECTRO MECHANICAL PACKAGE FOR NAITWAR MORI HYDRO ELECTRIC PROJECT 60(2X30) MW List of Deviations without Cost of Withdrawal (to be submitted with Price Bid) (Bidder's Name & Address):
To:.................................. (Employer's Name & Address) Dear Sir, Following are the deviations proposed by us as per ITB Clause 13.2(h). We are also furnishing below the cost of withdrawal for the deviations proposed by us in Attachment 8(i). We confirm that we shall withdraw the deviations proposed by us at the cost of withdrawal indicated in this attachment failing which our bid may be rejected.
Deviations:
S. No. Clause No. Deviation
Remarks/Justification
1. 2. 3. 4.
In case no specific cost of withdrawal is mentioned against any item in column no. 4, cost of withdrawal of such deviations shall be treated as 'NIL'.
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 11Date: ................
(Signature).....................................
Place ................ (Printed Name)...............................
(Designation)................................. (Common Seal)...............................
.
Bid Document for EM Works of Section-VII Page 17 of 227"
NMHEP (2x30) 60MW No. SJVN/ CC/ (Attachments) ECD/ NMHEP/EM/17
19. It is not in dispute that as per Clause 13.2(h) technical specifications and drawings with regard to the deviations proposed by the bidder were to be listed in Attachment 8(i) and withdrawal cost of the same was to be listed in attachment 8(ii). It is also not in dispute that in terms of ITB, it was Attachment 8(i), which was to form part of Envelope-1 i.e. the Techno Commercial Bid and Attachment 8(ii) was to form part of Envelope-2 i.e. Price Bid.
20. In other words, the proposed deviations were to be provided by a bidder in Attachment 8(i) and withdrawal cost thereof only was to be provided in Attachment 8(ii).
21. It is also not in much dispute that in the present case, the proposed deviations, which were provided in Attachment 8(i) by Voith, were not "critical deviations".
Primarily challenge laid to the bid which was so put forth by respondent No.2, by the petitioner is, that because in Attachment 8(ii) certain "critical deviations" were proposed, ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 12 therefore, the same rendered the bid of respondent No.2 to be non-responsive and respondent No.1 could not have had accepted the same as has been done by it.
.
We reiterate that as per the scheme of ITB,
22. proposed deviations were to be part of only Attachment 8(i).
Therefore, at this stage, we independently dwell with what were the proposed deviations in Attachment 8(i) incorporated by Voith. The same are reproduced below.
S.No. Clause No. r toDeviation Remarks/ Justifications GENERAL
1. - The clarifications and Amendments issues pursuant to the pre-bid meeting held on 13th November, 2017 shall form an integral part of the Contract COMMERCIAL
2. Delete the following sentence "any minor items mentioned in GC Clause 24.7 hereof relevant to the Facilities or that part thereof have been completed"
and insert the following sentence at the end of GC GC 25.3.1(d) Clause 25.3.4 "Notwithstanding anything contained to the contrary under the Contract Documents, the Completion of the Facilities under GC Clause 24.7 and issuance of Operational Acceptance Certificate shall not be withheld for completion of minor items which do not hinder commercial operation of the Facilities or part thereof".
3. Clause(c)--Third Party Replace the following sentence Liability Insurance, "Rs.0.5 million per person per ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 13 Appendix-3 to the occasion" with "Rs.0.5 million Contract Agreement per person per occasion and in aggregate."
.
23. It is not in dispute that only those bids containing deviations from critical provisions as has been mentioned in 13.2(h) were to be considered as non-responsive. A perusal of the contents of said clause demonstrates that the proposed deviations by Voith in Attachment 8(i) cannot be termed as deviations from critical provisions. We may add that during the course of arguments, there was not much serious dispute vis-a-vis this issue. Therefore, we hold that the proposed deviations by Voith as were envisaged in Attachment 8(i) and which as per terms of ITB were to form part of Envelope-1, which was Techno Commercial Bid were not such deviations which would have rendered the bid to be non-responsive.
24. That being so, the moot issue which arises for consideration is as to whether bid of respondent No.2 could have been termed to be non-responsive on the basis of contents of Attachment 8(ii) which erroneously was uploaded alongwith Envelope-1 and which Attachment as per terms of ITB was not to be uploaded with Envelope-1, but was to be uploaded with Envelope-2 i.e. the Price Bid.
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 1425. As mentioned above, preparation uploading and submission of bid is provided in Clause-21 of ITB. At the cost of repetition, it is stated that Clauses-21 envisages .
online submission of Envelope-1 bid i.e. qualification particulars and Techno Commercial Bid to contain the Documents/Attachments referred therein which expressly mentioned "all Attachments except 8(ii) alongwith supporting documents".
26. Because Attachment 8(ii) was not to be a part of Envelope-1 bid i.e. qualification particulars and Techno Commercial Bid, therefore, even if erroneously or otherwise, document such like Attachment 8(ii) was uploaded alongwith Envelope-1, then the only option with the Employer-Respondent No.1 was to examine the Techno Commercial Bid, so submitted by respondent No.2 by excluding/ignoring Attachment 8 (ii).
27. As it is not in dispute that deviations proposed in Attachment 8(i) were not critical deviations, therefore, in our considered view simply because Attachment 8(ii) was erroneously uploaded alongwith Envelope-1 and the same contained mention of "price adjustment", it did not render the Techno Commercial Bid of respondent No.2 to be non-
responsive.
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 1528. We reiterate that the Techno Commercial Bid of the said bidder was to be examined on the basis of Attachment appended with the said Bid minus Attachment .
8(ii).
29. Record also demonstrates that at the time of preliminary examination of the bid and determination of responsiveness which took place qua techno commercial bid on 28.02.2018, respondent No.1 did not find the bid of respondent No.2 to be non-responsive. It is also a matter of record that pursuant to communications which took place between respondent No.1 and respondent No.2, the proposed deviations be it in Attachment 8(i) or Attachment 8(ii) stood withdrawn by respondent No.2 as on 11.04.2018, i.e. much before the date on which the price bids were opened i.e. 18.04.2018.
30. In other words, as on the date when the price bids of the bidders whose bids were found to be technically responsive were opened by respondent No.1, the deviations, which were proposed by respondent No.2 stood withdrawn.
31. Therefore, it is not a case that as on the date when the price bids were opened by respondent No.1 any material prejudice was caused to either of the bidders, ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 16 including the petitioner on the basis of proposed deviations, which were made by respondent No.2.
32. At this stage, we observe as to what really is the .
meaning of words "critical provisions". For such purpose, we do not have to travel beyond ITB. Clause 13.2 (h) itself illustrates as to what really would be critical deviations.
Price adjustment is once such component. Also Clause 28.4 further illustrates as to what really would be critical deviations though referred to as material deviations. It is one of three components i.e. (i) that affects in any substantial way the scope, quality or performance of the Contract; (ii) that limits in any substantial way, inconsistent with the Bid Documents, the Employer's rights or the successful Bidder's obligations under the Contract; or (iii) whose rectification would unfairly affect the competitive position of other Bidders who are presenting substantially responsive bids.
33. When we peruse Attachment 8(i) so uploaded by respondent No.2, we find that there is no deviation with respect to price adjustment. Similarly, we find it not to, in any manner affect the scope, quality or performance of the contract; limit in any substantial way the employer's rights or bidder's obligation under the contract or unfairly affect the competitive position of other bidders. Can it be said ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 17 that the erroneous uploading of a document i.e. Attachment 8(ii) by a party would unfairly affect the competitive position of other bidder? In our considered view, the .
answer is in the negative.
34. At this stage, we would also like to state that Attachment 8(i) and Attachment 8(ii) cannot be read disjunctively. They have to be read harmoniously, as per the contents of ITB, which provided that proposed deviations are to be mentioned in Attachment 8(i) and Attachment 8(ii) is only to contain "withdrawal price thereof".
35. In other words, nothing is to be read in Attachment 8(ii), save and except withdrawal price referred to therein, with regard to deviations, which are to be provided in Attachment 8(i). In our considered view, the scheme of the ITB is such that whether or not a Bid is responsive has to be gathered from the Attachments which are appended alongwith Envelope-1, which includes Attachment 8(i) and not from any other Attachment, which otherwise is not to be part of Envelope-1.
36. It is not the case of petitioner that on the strength of those Attachments, which were to be uploaded alongwith Envelope-1, the Bid of Voith was non-responsive.
Petitioner has harped only upon the contents of Attachment ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 18 8(ii) to justify that the Bid of Voith was non-responsive. As we have already held, because Attachment 8(ii) was not to be part of Envelope-1, therefore, erroneous uploading of the .
same, in our considered view, cannot render the Bid of Voith to be non-responsive, because for all intents and purposes, the same was liable to be ignored. We may also add, at this stage, that it is not the case of the petitioner that as on 28.2.2018, the Bid of Voith was found to be of Attachment 8(ii).
r to technically responsive, only on the strength of the contents Therefore, also we do not find any merit in the contention of the petitioner.
37. In view of the above discussion, in our considered view, it cannot be said that the uploading of Attachment 8(ii) alongwith Envelope-1, amounted to deviations from a critical condition even if, the term "price adjustment" was mentioned therein. Similarly, it cannot be said that SJVN in an illegal, improper, irregular, arbitrary or with malafide intention considered technical bid of Voith as responsive. On the strength of documents appended by the petitioner, it could not be substantiated that the competitive position of the petitioner was anyway affected to its disadvantage by the act of uploading of Attachment 8(ii) alongwith Envelope-1 by Voith. While arriving at the said decision, we have not been influenced by the fact that ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 19 contents contained in Attachment 8(ii) were termed as suggestion by SJVN. On an independent appreciation of the contents of the said Attachment vis-a-vis terms of ITB, we .
have come to the conclusion that erroneous uploading of the said Attachment alongwith Envelope-1, including the contents of the same cannot be said to have had rendered the bid of Voith to be unresponsive. The condition that Clause 13.2(h) stipulated deviations except "critical deviations" also per se does not has any bearing on the responsiveness of the bid of Voith because the deviations were to be reflected in Attachment 8(i) and there were no critical deviations mentioned in the said Attachment.
38. Further, ITB contemplated that deviations mentioned anywhere except Attachment 8(i) had to be ignored and therefore, also in our considered view, reference of certain deviations in Attachment 8(ii) is not fatal to the cause of Voith.
39. It is a matter of record that the deviations be it in Attachment 8(i) or Attachment 8(ii) were withdrawn by Voith on 11.04.2018 i.e. much before the date when the Price Bids were opened. It is also a matter of record that Prince Bid of Voith was approximately `33 Crores less than the petitioner and in our considered view even otherwise, if the tender process is set aside at this stage, public ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 20 exchequer undisputedly will be fastened of additional financial burden. It is a settled principle of law that it is the employer who is best judge as to whether a bidder is .
responsive or not. In the present case, according to the employer the bid of Voith has been found to be responsive.
In our considered view, this view of the Experts can otherwise also not substituted by the Court until or unless it is shown to the Courts on face of it that the decision so taken by the employer is erroneous. In the facts of this case, petitioner has not been able to prove that the acceptance of the bid of Voith by SJVN on the face of it is an erroneous act.
40. It cannot be disputed that Clause 13.2(h) is mandatory, however, its violation by respondents has not been proved by the petitioner. It can also not be said that any relaxation has been given by SJVN in favour of Voith to accommodate the said respondent though Voith was not conforming to the bid conditions. In our considered view, from the record, it cannot be said that SJVN has favoured Voith. It is no ones case that the Rules of the Game or condition of ITB were at any stage altered or changed by SJVN to favour Voith. No unfair advantage has been given to Voith as is claimed by the petitioner nor the doctrine of legitimate expectation has been violated. This is for the ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 21 reason that before Price Bid was opened on 18.05.2018, none knew as to who was the lowest bidder. Much before that, deviations stood withdrawn by Voith which is a matter .
of record. Herein it is not a case that any essential condition of ITB was either relaxed or deviated and therefore, also it cannot be said that by entertaining the bid of Voith the employer has acted in an arbitrary manner.
We have at length examined as to whether the
41. process adopted or decision made by the authority is hit by malafides or was intended to benefit someone or whether the process adopted or decision made is arbitrary or whether public work is affected which in the instant case is none.
42. In Jagdish Mandal vs. State of Orissa & others, (2007) 14 SCC 517 Hon'ble Supreme Court has held that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. A contract is a commercial transaction and 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 bonafide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 22 procedural aberration or error in assessment or prejudice to a tenderer, is made out.
43. In Michigan Rubber (India) Limited vs. State of .
Karnataka & others, (2012) 8 SCC 216, the Hon'ble Supreme Court has held that in the matter of formulating conditions of tender documents and awarding contract, greater latitude is required to be conceded to the State Authorities. Unless action of the tendering authority is found to be malafide and is a misuse of statutory powers, interference of Courts is not warranted. It has been further held that 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. If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, again interference by Court is very restrictive since no person can claim a fundamental right to carry on business with the Government.
44. Hon'ble Supreme Court in Michigan Rubber (supra) further held that Court would not normally interfere with the policy decision and in matters challenging award of contract by the State or Public Authorities. As per the Hon'ble Supreme Court interference can only be if a party ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 23 establishes that the award is contrary to public interest and beyond pain of description or unreasoning.
45. Similarly in Tejas Constructions and .
Infrastructure Private Limited vs. Municipal Council Sendhwa and another, (2012) 6 SCC 464, Hon'ble Supreme Court while reiterating the principles laid down in Tata Cellular vs. Union of India, (1994) 6 SCC 651; Raunaq International Ltd. vs. I.V.R. Constructions Ltd., (1999) 1 SCC 492; Reliance Airport Developers (P) Ltd. vs. Airports Authority of India, (2006) 10 SCC 1 etc., has held that in the absence of any malafides or arbitrariness in the process of evaluation of bids and determination of eligibility of bidders, there cannot be any interference by the Court.
46. In Air India Limited vs. Cochin International Airport Ltd. & others, (2000) 2 SCC 617 the Hon'ble Supreme Court has held that even when some defect is found in the decision making process, Court must exercise its discretionary powers under Article 226 of the Constitution of India with greater caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point.
47. In B.S.N. Joshi & sons Ltd. vs. Nair Coal Services Ltd. & others, (2006)11 SCC 548 the Hon'ble Supreme Court has held that it may be true that a contract need not ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 24 be given to the lowest tenderer but it is equally true that the employer is the best judge therefor, same ordinarily being within its domain, Courts interference in such matters .
should be minimized.
48. In Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited & another, (2016) 16 SCC 818 the Hon'ble Supreme Court Held that owner or 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 malafide or perversity in the understanding or appreciation or in the application of the terms of the tender condition. It has also been held that it is possible that the owner or the 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.
49. In JSW Infrastructure Limited & another vs. Kakinada Seaports Limited & others, (2017) 4 SCC 170 the Hon'ble Supreme Court while reiterating the principles laid down in Tata Cellular vs. Union of India, (1994) 6 SCC 651 held as under: -
::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 25"8. ...We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. A Three Judge Bench of this .
Court in Tata Cellular vs. Union of India, 1994 6 SCC 651 held that:
(i) there should be judicial restraint in review of administrative action;
(ii) the court should not act like court of appeal; it cannot review the decision but can only review the decision making process
(iii) the court does not usually have the necessary expertise to correct such technical decisions.;
(iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries."
50. In Central Coalfields Limited & another vs. SLL-
SML (Joint Venture Consortium) & others, (2016) 8 SCC 622 the Hon'ble Supreme Curt has again reiterated the findings in G. J. Fernandez vs. State of Karnataka, (1990) 2 SCC 488 and Ramana Dayaram Shetty vs. International Airport Authority of India, (1979) 3 SCC 489 that 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.
51. In Montecarlo Limited vs. National Thermal Power Corporation Limited, (2016) 15 SCC 272, reiterating the law declared by the Hon'ble Supreme Court in Sterling Computers Ltd. vs. M&N Publications Ltd., (1993) 1 SCC ::: Downloaded on - 06/11/2018 22:59:44 :::HCHP 26 445, that by way of judicial review, the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State and that .
Courts have inherent limitations on the scope of any such inquiry.
In view of the aforesaid discussions, the present petition is dismissed. Pending applications, if any, also stand disposed of accordingly.
r to (Sanjay Karol),
Judge.
(Ajay Mohan Goel)
November 6, 2018 Judge.
(Dhiman/Purohit/PK)
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