Gauhati High Court
Page No.# 1/35 vs The State Of Assam And 4 Ors on 1 November, 2021
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/35
GAHC010078602020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2337/2020
M/S. MEROLYN ENGINEERING WORKS PVT. LTD. AND ANR.
A LTD. COMPANY AND LEAD PARTNER IN MEROLYN- ANANDA JOINT
VENTURE HAVING ITS REGD. OFFICE AT 4/6 FORESHORE ROAD,
HOWRAH- 711103, WEST BENGAL
2: JINTUMONI TALUKDAR
S/O- SRI ANIL TALUKDAR
R/O- BHAGADUTTA PATH
MOTHER TERESSA ROAD
GHY-2
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM, TOURISM DEPTT.,
DISPUR, GHY-6
2:THE DIRECTOR OF TOURISM
GOVT. OF ASSAM
GHY-1
3:THE ASSAM TOURISM DEVELOPMENT CORPORATION
REP. BY ITS CHAIRMAN
ASOM PARYATAN BHAWAN
A.K. AZAD ROAD
PALTAN BAZAR
GHY-08
4:THE MANAGING DIRECTOR
ASSAM TOURISM DEVELOPMENT CORPORATION
ASOM PARYATAN BHAWAN
A.K. AZAD ROAD
PALTAN BAZAR
GHY-08
Page No.# 2/35
5:THE FMC- RELEMECH- AAAD
CONSORTIUM
HAVING REGD. OFFICE AT HOUSE NO. 59A
BYE LANE NO. 1
GANDHI BASTI
GHY-03
DIST.- KAMRUP
ASSA
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA Date : 01-11-2021 JUDGMENT & ORDER(CAV) Heard Mr. K. N. Choudhury , learned Senior Counsel assisted by Mr. H. Das, learned counsel for the petitioner. Also heard Mr. D. Das, learned Senior counsel assisted by Mr. A. Kalita learned counsel for respondent No. 5 and Mr. P. K. Sarma, learned Counsel appearing for the respondent Assam Tourism Development Corporation Ltd (ATDCL) respondent Nos. 2,3 and 4 and Ms. D. D. Barman, learned State Counsel for respondent No. 1.
2. The Managing Director, ATDCL issued notice inviting bid (QCBS) (E- procurement) notice dated 29.1.2020 from reputed manufacturer/ authorized supplier for design, construction, supply , testing and commissioning of cruise, Ferry vessels, Floating Steel Barge barge/Pontoon and FRP speedboats at Majuli, Assam The approximate value of the tender was Rs. 16,50,00,000/-. The last date of submission of e/bid was scheduled on 10.2.2020 upto 2 PM . The date was extended by the respondents for submission of bid to Page No.# 3/35 17.2.2020 up to 2 PM.
3. The relevant portion of bid evaluation criteria in the notice inviting bid dated 29.1.2020 is extracted herein below:
"BID EVALUATION CRITERIA Based on the NIB, Managing Director, ATDC Ltd. will follow the following procedure for opening of the BID:
Step-1 After receiving the BID , on the same day Managing Director, ATDC Ltd will open the Envelope and check the receipt of the two separate envelopes inside the same duly mentioned with envelop-II as mentioned in the Bid document. The Managing Director, ATDC Ltd will open first the Cover-I to check the EMD/Bid Security and cost of bid document in the absence or default of which the bid may get rejected. STEP II The Managing Director, ATDC Ltd. will open the cover -II based on the cover-I as opened earlier on the same day, managing Director , ATDC Ltd. will check the documents submitting with cover II , technical bid and credential , overall and keep for scrutiny and evaluation by Managing Director, ATDC Ltd/ Evaluation Committee. After technical evaluation on above, Managing Director, ATDC Ltd. will decide the date of opening of financial Bid based on the evaluation Report. After opening of the financial Bid, Managing Director, ATDC Ltd will evaluate the same to take the final decision on the same. The evaluation matrix attached with the Bid as guide line to the Bidders as follows:
EVALUATION MATRIX
Sl.no. Particulars Max. Marks Score Remarks
1 Experience on similar work(s) 15
during last 7 years with details
supported by copy of work
order and completion certificate
2 Annual financial turnover during 15
the last years.
2018-2019-Rs.........
2017-2018-Rs...........
(a)
2016-2017-Rs......
(b) Evidence of access to line (s) of
credit and availability of other
financial resources facilities
(10% of contract value),
certified by bankers
(c) Bank Solvency Certificate not
more than 3 months old.
3 Key personnel available and 10
proposed to be engaged for
management and supervision of
the project , their qualifications
and experience with photocopy
of certificate and consent letter
of key personnel
4 Major equipment proposed to 5
carry out the contract
5 Proposed Methodology of 5
execution and work
programme(as per scope of
work)
6 Undertaking/Declaration of 5
Page No.# 4/35
Safety rule-regulations & safety
appliances
7 Proof of availability of 5
maintenance facility
Bidder should have local ship
building infrastructure with valid
documents for last 3 years.
8 The bidder should have 10
successfully been running
inland offshore vessel based
cruising/ Marine business for
last 3 years
9 Presentation 30
Total marks 100
Note- Bidder must submit authenticated information with supporting documents as above. QCBS evaluation criteria. The assessment will be done on above basis. Evaluation criteria of QCBS:-= Presentation -To become eligible for power Point Presentation Bidder must secure 40 marks out of 70 marks.
1) Technical marks:- The bidder must secure 60 marks in aggregate (combine in technical and power point presentation marks) for opening of financial bid.
2) Financial Marks: Based on lowest quote as 100% , the financial score in percentage will be worked out.
Final Evaluation for selection:(QCBS Evaluation):
The final Evaluation for selection will be based on combine evaluation of Technical + Financial Score. Weightage and Financial Score will be 70:30.
Mode of Evaluation :
The evaluation will be QCBS(Quality-cost Based Selection) Evaluation. Final Score: F: =0.7xT s = 0.3 xF s Ts=Technical Score Fs=Financial Score"
4. The technical bid was opened on 21.2.2020 (sic) 21.5.2020. Three bidders were found to be technically eligible out of four bidders and the standings of the three eligible bidders are extracted below:
Sl. Name of the bidder Technical Mark out Technical mark out Position No. of 100 of 70 1 M/s FMC-Relemech-AAAD 82.5 57.75 I 2 M/s Manavta Trade link Pvt Ltd. 64.5 45.15 III
3. M/s Merolyn Engineering Pvt. Ltd 65.5 45.85 II
5. The financial bid was opened on 22.5.2020. It would reveal that the Page No.# 5/35 financial bid quoted by the petitioner, M/s Merolyn Engineering Works Pvt. Ltd.
was lowest. The final standing of the parties after opening of financial bid is extracted herein below:
A)Mark obtained as per Technical Evaluation Name of bidder Mark out of 100 Mark out of 70
1.M/s FMC Relemech - AAAD, 82.50 57.75 ...Respondent No. 5
2.M/s Manavta Trade Link Pvt Ltd 64.50 45.15
3)M/s Merolyn Eng. Works Pvt. 65.50 45.85 Ltd,.
B) Mark obtained as per Financial Evaluation Name of bidder Declared amount Mark out of 30
1. .M/s FMC Relemech - AAAD Rs. 16,10,00,000.00 28.65
2.M/s Manavta Trade Link Pvt Ltd Rs. 18,14,00,000.00 25.44
3.M/s Merolyn Eng.Works Pvt.Ltd,. Rs. 15,38,00,000.00 30.00 C) Total Mark obtained after Technical & Financial Bid Evaluation (Technical 70+ Financial 30= Total 100 Marks) Name of bidder Technical Mark Financial Mark Total Position
1. .M/s FMC 57.75 28.65 86.40 I Relemech - AAAD
2.M/s Manavta 45.15 24.44 70.59 III Trade Link Pvt Ltd
3.M/s Merolyn 45.85 30.00 75.85 II Eng.Works Pvt.Ltd,.
6. The petitioner, M/s Merolyn Engineering Works Pvt. Ltd. being dissatisfied in the ranking thereby showing the respondent No. 5 at serial No. 1 in the final evaluation of technical and financial bids combined, submitted representation dated 23.5.2020 to the respondent No.2, the Director of Tourism. As there was no response the petitioner filed this writ petition assailing the legality and validity of the assessment of technical bid dated Page No.# 6/35 21.2.2020 (sic) 21.5.2020 alongwith marks allotted therein and the final statement combining technical and financial bids thereby declaring the petitioner as No. 2 bidder and for setting aside and quashing the entire process arising out of notice inviting bid dated 29.1.2020 and also to declare the petitioner as the successful bidder.
7. Mr. Choudhury learned Senior Counsel submits that as per serial No. 1 of the "evaluation matrix" experience on similar nature of work during last seven years carried 15 marks. The respondent No. 5, FMC-Relemech- AAAD is a consortium. The lead partner Relemech INC did not execute any similar nature of work during the last seven years. On the other hand, the petitioner in the joint venture of Merolyn-Ananda Shipyard executed and submitted credentials of similar nature of works performed during last seven years. The annual financial turnover during the last three years i.e. 2016-17,2017-18 and 2018-19 carried 4 marks each financial year out of total 15 marks. The turnover mentioned by Relemech INC as the lead partner of respondent No. 5 consortium is the combination of turnover of all its constituent entities. However the turnover relevant for evaluation of the tender ought to have been considered of the turnover only in respect of the lead partner and not the combination of all the three entities . The lead partner of the respondent No. 5 consortium did not furnish G.S.T registration certificate in their technical bid document. It was the GST certificate issued for Relemech Entertainment which was not valid for the lead partner, Relemech INC .
8. Clause 4.2(vi) under the heading "Qualification for bidder" in the tender document required submission of balance-sheet, profit and loss account and audit reports for the last three years. The lead partner of respondent No. 5 in the technical bid submitted the same for last one year and not for last three years. From the comparison of the technical bid of the Page No.# 7/35 petitioner and respondent No. 5, it would reveal that the petitioner possessed more machinery, equipment and qualified workers compared to the respondent No. 5 . However, technical bid evaluation committee intentionally gave less marks to the petitioner in the said head of technical evaluation. The petitioner, being the lead partner in the Merolyn Ananda Joint Venture is technically and financially stronger than the respondent No. 5 but even then the technical bid evaluation committee failed to consider such relevant aspect of the matter while granting marks in the technical bid evaluation.
9. The respondent Nos 2 and 3 did not reveal the component wise break up of marks nor in their affidavit in opposition as to what marks the bid evaluation committee awarded against each component . Questioning the fairness and transparency in the decision making process it is submitted by Mr.Choudhury, that the act of non mentioning even in the affidavit in opposition the marks component wise by the respondent ATDCL apparently supported the said contention. It is the contention further that the petitioner had reasons to believe that the marks placed before this court is nothing but after thought and prepared after filing of the writ petition.
10. Mr. Choudhury learned Senior counsel submits that for execution of contract, Relemech INC as the lead partner is required to make available its equipments and organization in the place of work and the foreign company i.e. FMC Relemech- AAAD would only provide their experience in the field , expertise of managerial staff, capital and technical knowhow etc. But the Relemech INC being the lead partner of the respondent No. 5 without executing similar nature of work ought not to have been considered in the technical bid itself. On the other hand, the petitioner's joint venture i.e. Merolyn Ananda Shipyard & Slipways Ltd, the Indian Company M/s Merolyn Engineering Pvt. Ltd. executed and furnished details of Page No.# 8/35 completion of several similar nature of works in the last seven years alongwith the necessary particulars of equipments, organization , manpower and all the requisites for successful execution of the work at Majuli. But the bid evaluation committee granted similar marks i.e. 15 to both the parties which is out and out arbitrary and discriminatory . Although the joint venture is considered as one unit but while awarding marks under various component in the evaluation matrix , the bid evaluation committee ought to have applied its mind to the various intricacies related to the execution of the contract work for which it ought to have considered the experience of the lead partner being the Indian company of the respondent No. 5.
11. The turnover mentioned by Relemech INC is combination of turn over for its all constituents and Relemech INC submitted profit & loss account , balance sheet for the year 2019-20 only. The details of previous years of Relemech INC are not given in the bid documents. The turnover of Relemech INC for the year 2019-20 was around Rs. 30 lacs . The bid evaluation committee while awarding marks for serial No. 2(a) of the evaluation matrix took into consideration the turnover of the consortium i.e. FMC- Relemech- AAAD and did not look into the capacity of the Indian company at all. Thus it had over looked the capacity of the Indian company to complete the contract work valued at more than 16 crores. The petitioner, M/s Merolyn Engineering Works Pvt. Ltd. had a total turnover of Rs. 440 crores alone compared to Rs.365 crores of the respondent No. 5, the consortium jointly . The financial resources facility of the petitioner is to the tune of Rs. 3 crores as compared to Rs 1.70 crores of the respondent No. 5. But the evaluation committee assessed both the petitioner and the respondent No. 5 at par thereby assigning equal marks to both .
12. The petitioner more specifically the joint venture, Merolyn Engineering Works Pvt Page No.# 9/35 Limited & Ananda Shipyard & Slipways Ltd are technically qualified having under its fold various technical persons and as referred in the affidavit in opposition of the ATDCL, there was no requirement to submit the consent letters from the said technical persons inasmuch as the joint venture directly employs engineer, naval architect and other personnels having specialization in the marine field being on the pay roll of it. The tender committee failed to consider those aspects and there was disparity in the assessment by giving lesser marks to the petitioner at serial no. 3 of the evaluation matrix. Regarding awarding of marks at serial No. 4 by the bid evaluation committee there were also disparity inasmuch as the petitioner was having major equipments much more than the lead partner of respondent No.
5. The said Relemech INC did not even mention as to whether the equipments submitted in the bid were owned or rented in contrast to the petitioner who owns all the major equipments . Accordingly the bid evaluation committee could not have given equal marks. The committee granted equal marks though the respondent No. 5 is lacking the requisite infrastructure and allotted lower marks to the petitioner in other components in order to do favour to the respondent No. 5. It is also submitted by Mr. Choudhury that the bid evaluation committee while assessing the capability under serial No. 7 pertaining to proof of availability of maintenance facility did not give any marks to the petitioner inasmuch as the petitioner in its communication dated 18.2.2020 gave undertaking that they had understanding with a local Ship Builder for infrastructure, maintenance facility in order to execute the contract as stipulated in the tender documents. The State of Assam is yet to have an indigenous shipyard. Under such circumstance '0' marks granted to the petitioner at serial No. 7 is totally illogical. Similarly non granting of any marks at serial No. 8 is quite contrary to the supporting documents annexed to this writ petition showing the petitioner Page No.# 10/35 i.e. Merolyn Engineering Works Pvt. Ltd. successfully running inland /off shore vessels based cruising / marine business. The remarks thereof in the said evaluation matrix is absolutely perverse. The petitioner was the lowest bidder and by not awarding the contract to it the State would loose revenue to the tune of Rs. 72 lacs which is always a deciding factor in awarding of a contract. Mr.Choudhury, the learned Senior Counsel submits that the tender committee failed to evaluate applying the required yardstick in respect of joint venture. He relied on New Horizons Limited and another vs. Union of India reported in (1995) 1 SCC 478. Accordingly Mr.Choudhury sought for interference of this court in the writ petition.
13. The respondent Nos. 3 and 4 filed affidavit in opposition wherein it was specifically denied the allegation of non consideration of each and every documents while carrying out evaluation of the bid. It is submitted that the technical evaluation is absolutely transparent, fair and reasonable. It is stated that the respondent Corporation adopted uniform tender evaluation method i.e. QCBS method and as per the practice the statement of the technical bid declaring the total marks scored by the bidders was published. Moreover nowhere in the tender documents it was mandatory on the part of the tender committee to publish component wise break up or justification for the marks awarded against the parameters of the evaluation matrix. The petitioner was allotted highest marks in the financial evaluation as it quoted lowest bid among all the bidders. But the final evaluation for selection was based on the combined evaluation of technical and the financial score. The respondent No. 5 was selected for the contract as it secured higher marks than the petitioner in the combined evaluation of technical and financial score.
14. In the affidavit in opposition it is specifically stated that the petitioner in its individual capacity as lead partner of the joint venture Merolyn Engineering Works Pvt. Ltd- Ananda Page No.# 11/35 Shipyard and Slipways Ltd. did not submit any documents pertaining to "experience on similar works" and "financial turnover" as per tender requirements. But the joint venture Merolyn Engineering Works Pvt. Ltd - Ananda Shipyard and Slipways ltd submitted the same in the name of joint venture through its partner Ananda Shipyard and Slipways Ltd . Similarly the respondent No. 5 also submitted documents pertaining to the "experience in similar works" and "financial turnover" as per tender requirements in the name of joint venture through its partner FMC. The respondent No. 5 had submitted a valid GST registration certification which belonged to sole proprietor of both Relemech INC and Relemech Entertainment .The respondent No. 5 submitted one certificate issued by Chartered Accountant supporting the fact that the Proprietor of Relemech INC, Ms Ruli Ahmed is the sole Proprietor and 100% beneficial owner of Relemech Services, M/s Relemech INC and M/s Relemech Entertainment. Denying the allegations of the petitioner in the writ petition, the respondent Nos 3 and 4 in the affidavit in opposition submitted that the respondent No. 5 as joint venture submitted balance sheet, profit and loss account and audit report for last three years fulfilling the requirements of Clause 4.2(vi) of "qualification of the bidders". In respect of parameter 3 of the evaluation matrix it is required that the bidders must provide details of "key personnel" available and proposed to be engaged for management and supervision of project, their qualification and experience alongwith consent letter of "key person". The petitioner joint venture provided names of three "key persons" holding the position of consultant but without their consent letters. The other personnels proposed by the petitioner for the project were much less qualified compared to those of private respondent No. 5. The consent letters of the key personnels are mandatory which the petitioner failed to submit. The respondent No. 5 submitted the consent letters and certificates of the key personnels Page No.# 12/35 who were much more qualified. The petitioner was not technically fit for contract and as such it scored lesser marks in technical evaluation compared to the respondent No.5. Moreover after both technical and financial evaluation, the final score of respondent No. 5 was higher than the petitioner. The respondent No. 5 quoted 2.42% below the tender value in the financial bid but the petitioner could not overcome the score of the respondent No. 5 in the technical and financial score combined. As such the statement that the action of the answering respondents was actuated by colourable exercise of power in order to do favour to respondent No. 5 was totally baseless.
15. Regarding the criteria "proof of availability of maintenance facility"it is submitted in the affidavit in opposition of respondent Nos.3 and 4 that it was mandatory that the bidder should have local ship building and infrastructure with valid document for last three years. The petitioner submitted documents pertaining to availability of maintenance facility at Howrah, West Bengal which cannot not be considered as local. The petitioner did not submit any document to show that the petitioner was successfully running inland or offshore vessel based cruise or marine business for last three years.
16. Referring to the stand taken by the respondent Nos. 3 and 4 in the affidavit in opposition Mr. Sarma, learned Counsel for the ATDCL submitted that ATDCL adopted uniform tender evaluation methods i.e QCBS methods. Moreover there was no mention in the tender notice about publication of the component wise break up of marking in the assessment of the technical bids and for that reason of non publication only, contention of the learned Senior counsel for the petitioner that there was no transparency in the evaluation process cannot be accepted. He also submitted that the primary advantage of QCBS method of evaluation was that mere submission of lowest financial bid does not entitle any bidder to get Page No.# 13/35 the contract. The bidder must also be technically sound to carry out the project in a successful manner. In the present case the joint venture Merolyn- Ananda Shipyard was technically not fit for the contract and as such it scored lesser marks in the technical evaluation compared to respondent No. 5. The respondent No. 5 as hereinabove observed quoted 2.42% below the tender value in the financial bid but only for that reason the financial bid quoted by the petitioner which was much lower than the one quoted by the respondent No.5 cannot be considered leaving aside the score in the technical evaluation. As per Clause 4.3 of tender documents, to qualify for awarding a contract each bidder in its name should have average annual financial turnover during the last three years at least 30% of the bid value which comes to more or less Rs. 5 crores. The joint venture bidders, respondent No. 5 and the petitioner qualified such criteria in the capacity of joint venture but not in any individual capacity of the lead partner. Accordingly both the petitioner and the respondent No. 5 being situated similarly, each of them scored equal marks in serial No. 2 of evaluation matrix. As hereinabove stated in affidavit in opposition, proof of availability of maintenance facility is mandatory and bidder should have local shipbuilding infrastructure with valid documents of last three years but the petitioner failed as hereinabove stated in the affidavit in opposition. The evaluation committee awarded the marks after giving due consideration to each and every parameters of the evaluation matrix and while doing so valid reasons indicating the basis on which marks were granted against each parameters were recorded. Mr. Sharma produced the records for inspection by this court.
17. Mr. Das, learned Senior counsel for respondent No.5 referring to the stand in the affidavit in opposition filed by the respondent No.5, submitted that respondent No.5 in its affidavit in opposition raised the preliminary objection as to the locus-standi of the petitioner Page No.# 14/35 and its representative to file the instant writ petition challenging the selection of the respondent No. 5 as the successful bidder in the tender process. The petitioner participated as a joint venture of two companies, namely M/s Merolyn Engineering Pvt. Ltd. and M/s Ananda Shipyard and Slipways Ltd. As per the definition "bidder/contractor" as defined under Clause 1(i)(b) of the General Conditions of the Contract of the bid documents means the company , firm, person or persons whose bid has been accepted by the Corporation and includes bidder's successors etc unless excluded by the contract. The said definition signifies that if a joint venture submitted a bid then the bid is not submitted as an individual company, but as a joint venture entity . The bid was submitted by the said joint venture and not by the M/s Merolyn Engineering Pvt. Ltd. in its individual capacity. Therefore the right to challenge the selection process accrues only to the joint venture and not to M/s Merolyn Engineering Pvt. Ltd in its individual capacity. Accordingly the petitioner being not the bidder in its individual capacity had no right to challenge the selection process in the instant writ petition.
18. Mr. Das admitted that the bid evaluation committee evaluated the bids according to the bid evaluation criteria and evaluation matrix as provided in the tender documents on the basis of the information and documents submitted by the respective bidders. The evaluation committee awarded respective marks after giving due consideration to each and every parameters of the evaluation matrix and the evaluation committee assigned valid reasons indicating the basis on which marks were granted against each component of the evaluation matrix. The evaluation process on Quality Cost Based Selection (QCBS) is not on the basis of financial bid only which plays a major role in a process based on technical qualification. In QCBS standard, marks are provided in the technical bid component wise as well as financial bid and the respective total marks obtained by each bidders becomes the key Page No.# 15/35 of selection of the successful bidder. Even if under QCBS process of evaluation the financial bid is lowest, it may not make the bidder successful if the technical score is on the lower side.
19. The annual financial turnover for the respondent No. 5 for the year 2016-17, 2017-18 and 2018-19 of Relemech Incorporation INC, Relemech Entertainment and Relemech Services were submitted. The annual financial turnover of FMC Dockyard Ltd was also submitted. The qualifying criteria as per tender condition was that of the joint venture but not of an individual partner. It was argued that one of the partners of respondent No. 5 FMC Dockyard submitted the annual required turnover which easily qualified the joint entity of respondent No. 5. Accordingly the contention of the learned counsel for the petitioner regarding non submission of annual turnover by Relelmech INC is irrelevant. Moreover the tender condition nowhere specified that the lead partner had to submit the annual turnover and the highest annual turnover of the lead partner would have any kind of relevance.
20. Respondent No. 5 submitted its bid as joint venture and not in an individual capacity of its respective partners. FMC dockyard as the joint venture partner submitted the required balance sheet and profit & loss account for last three years which itself qualified the respondent No. 5 in the bid and as such the balance sheet submitted by the Relemech INC was in addition to the one of FMC Dockyard. A chartered accountant certificate containing the financial details of Relemech Inc, Relemech Services and Relemech Entertainment for last three years was submitted. It was totally irrelevant factor that the lead partner of M/s Merolyn Ananda joint venture had more machinery equipments and qualified workers as compared to Relemech Inc, the lead partner of respondent No. 5. M/s Merolyn Ananda joint venture in fact did not furnish any document to show that they would be able to engage full Page No.# 16/35 time employees for the project. Instead they had given some details pertaining to the consultants only which was not as per the tender terms and conditions.
21. Referring to the concept and meaning of the term "joint venture" it was submitted that no law on the Statute Book of India defined a joint venture. Section 8 of the Partnership Act, 1932 stipulates that a person may become a partner with another person in particular adventure. Such partnership is restricted to a single project in which members of joint venture act jointly both at the stage of tendering and at the stage of award till completion of contract. Joint venture of two or more persons undertaking to combine their property or labour in conduct of a particular line of trade is recognized by various judicial decision. It was the joint venture which involved itself in financial contribution by the parties effort, knowledge etc and as such once a joint venture participated in a bid it was liable for the performance of a contract and the individual parties forming the joint venture lost its individual identity including its legal right to contract in the individual capacity . Accordingly the petitioner who was not a bidder had no locus standi to file writ petition. Mr. Das relied (1) New Horizon Limited & another -Vs- Union of India & others reported in (1995) 1 SCC 478 (2) Fakir Chand Gulati Vs Uppal Agencies Pvt.Ltd. reported in (2008) 10 SCC 345 .
22. The learned Senior Counsel for respondent No. 5 further argued that the executive action in a tender process is subject to inherent limitation though a judicial review is possible Judicial review of executive action could be done only when if it was shown in the public authority committed gross illegalities or exercised power in any arbitrary manner. In the present case in hand, the petitioner failed to discharge its burden at least to show that the respondent ATDCL committed gross illegalities or exercised power in abusive arbitrary manner. Assessment of technical bid was on the basis of the material/documents submitted Page No.# 17/35 by the bidders in support of the various criteria stipulated in the evaluation matrix. There was no requirement of publishing the breakup of marks assessed and awarded to the individual bidder as per terms of the tender condition. The petitioner as hereinabove stated utterly failed to bring out any discriminatory / arbitrary decisions taken in the evaluation process more specifically while assessing and awarding the individual marks to the bidders and as such this petition is required to be dismissed. In support of the scope of judicial review under Article 226 of the Constitution of India in a tender matter Mr. Das relied on:
i) Jagadish Mandal-Vs State of Orissa (2007) 14 SCC 517 (Para 22).
ii) Michigan Rubber (I) Ltd Vs. State of Karnataka, (2012) 8 SCC 216(Para 11 & 21)
iii) The Bharat Coking Coal Ltd. Vs AMR Dev Prabha & Ors. 2020 SCC on line SC 335(Para 33)
iv) State of MP Vs UP State Bridge, 2020 SCC on line 1001-(Para 22)
23. Heard learned counsel and perused the records. Against the notice inviting bid dated 29.1.2020 four bidders participated. At the stage of evaluation of eligibility, one of the parties was eliminated as it was found to be non responsive due to non submission of similar nature of work order/ completion certificate . Thereafter in the evaluation of technical process there were three bidders in the competition namely the joint venture, Merolyn Engineering Works Pvt ltd and M/s Ananda Shipyard and Slipways Ltd, FMC- Relemech-AAAD, a joint consortium and M/s Manavta Trade Link Pvt. Ltd., a private limited company. This writ petition is filed by M/s Merolyn Engineering Works Pvt.Ltd as the lead partner in the joint venture Merolyn Engineering Works -M/s Ananda Shipyard and Slipways Ltd. The technical bid was opened on 21.2.2020 (sic) 21.5.2020 and the financial bid was Page No.# 18/35 opened on 22.5.2020.The final standing as per the total marks obtained by the said three parties after technical and financial bid evaluation stood as follows:
A)Mark obtained as per Technical Evaluation Name of bidder Mark out of 100 Mark out of 70
1.M/s FMC Relemech - AAAD, 82.50 57.75 ...Respondent No. 5
2.M/s Manavta Trade Link Pvt Ltd 64.50 45.15
3)M/s Merolyn Eng.Works Pvt.Ltd,. 65.50 45.85 B) Mark obtained as per Financial Evaluation Name of bidder Declared amount Mark out of 30
1. .M/s FMC Relemech - AAAD Rs. 16,10,00,000.00 28.65
2.M/s Manavta Trade Link Pvt Ltd Rs. 18,14,00,000.00 25.44
3.M/s Merolyn Eng.Works Pvt.Ltd,. Rs. 15,38,00,000.00 30.00 C) Total Mark obtain after Technical & Financial Bid Evaluation (Technical 70+ Financial 30= Total 100 Marks) Name of bidder Technical Mark Financial Mark Total Position
1. .M/s FMC 57.75 28.65 86.40 I Relemech - AAAD
2.M/s Manavta 45.15 24.44 70.59 III Trade Link Pvt Ltd
3.M/s Merolyn 45.85 30.00 75.85 II Eng.Works Pvt.Ltd,.
24. The petitioner is mainly aggrieved due to the marks awarded and evaluation carried out in the technical bids. For the said reason the evaluation of eligibility and evaluation of technical proposal of the bidders by the bid evaluation committee consisting of technical experts is extracted hereinbelow:
Evaluation of eligibility Name of the project Design, Construction, Supply, Testing & Comissioning of Cruise/Ferry Vessel,Floating steel barge/Ponton & FRP Speed Boat at Majuli, Assam Estimated Project Cost Rs. 16,50,00,000.00 SL Criteria Sub RFP Clause/Condition M/s FMC-Relemech- `M/s Manvta M/s Merolyn M/s Cleghorn No Criteria AAAD Tradelink Pvt. Engineering Mfg.Co.Pvt Page No.# 19/35 . Ltd. Pvt. Ltd.
Ltd.a
1 Experienc Successfull 3 6,60,00,000.0 O
e of y similar 0 R
similar completed projects
works during last of valve
7 not less
years(supp than
orted with 40%
completion
certificate)
8,25,000 O
R
13,20,00,ooo. O Construction of Oil Const. of two Supply of Tug
00 R Tanker M.T. CASCADE- unit flotilla.. in 1000 HP with
1 Indo Bangladesh accessories.
Cost of project= protocol route Cost of Project=
(Tk 18,20,25,000.00) cost of project. (Tk.55,31,62,636
Rs 16,05,35,780.00, Rs .48)
Date of completion 32,47,65,000.00 Rs.48,77,76,953.
30.12.2013 JV-FMC - Date of 00 *
completion Certificate dtd
19.1.2018 JV- 19.4.2013
M/s A.C.Roy & JV Ananda
Co Shipyard
2 Turnoer Minimum Averag 4,95,000.00 Turnover JV-FMC Turnover: JV- Turnover:JV Turnover:
Annual e Fy 2016-17 M/s A.C Roy & Ananda Shipyard Fy.2016-17 Rs.
average during Rs.119,15,48,926.00* Co FY 2016-17: Fy.2016-17 Rs. 4,07,87,000.00
turnoer of the Fy 2017-18 Rs 74,07,32,109.00* Fy 2017-18:
last three last 3 Rs.123,43,14,149.00* 23,80,60,405.00 Fy 2017-18: Rs.6,01,52,000
years yeariis Fy 2018-19: Rs Fy 2017-18: Rs Rs.134,95,65,742 .00
not less 123,27,84,696.00* 30,92,96,060.00 .00* Fy 2018-19
than Average: Rs Fy 2018-19: Fy 2018-19 Rs
30% of 121,95,49,257.00 Rs.34,17,16,761. Rs.232,95,13,38 7,07,45,000.00
Bid 00 8.00 Average Rs
value Average Rs Average Rs. 5,72,28,000.00
29,63,57,742.00 147,32,70,413.00
Final remark Eligible Eligible Eligible Not eligible
Note:1. Bangladesh Taka converted into Indian Rupee
2. Bidder M/s Cleghorn Mfg. Co. Pvt. Ltd failed to submit similar nature of work order/completion certificate 1 no. 80% of Bid value or 2 nos 50% of bid value or 3 nos 40 % of bid vale . Hence bidder declared non responsive.
EVALUATION OF TECHNICAL PROPOSAL Name of the Project Design, Construction, Supply Testing & Commissioning of Cruise/Ferry Vessel, Floating Steel, Barge/ Pontoon & FRO Speed Boat at Majuli , Assam Estimated Project Cost Rs.16,50,00,000.00 SL Criteria Sub Methodolog M/S FMC-Relemech- M/s. Manvta Tradelink Ms. Merolyn Engineering No. Criteri y Used for MAX AAAD.. Pvt. Ltd. Pvt. Ltd.
a Computatio
Marks Strength Mark Strength Mark Strength Mark
n of Marks
Page No.# 20/35
Financial 2016- *2 Marks JV-FMC turnover 4 Turnover Rs. 4 Turnover Rs 4
standing 17 for 30% of Rs.119,15,48,926. 23,80,60,405.00 74,07,32,109.00*
as bid value 00*
certified *3 marks
by for 90% bid 4
Bankers, value
1 Audited *4 marks
Profit & for 100%
Loss A.C and above
statemen of bid value
t and
Balance
Sheet,
Annual
turnover
in last 2017- Turnover 4 Turnover 4 Turnover 4
three 18 *2 Marks Rs. Rs.30,92,96,060 Rs.134,95,65,742.
years, 123,43,14,149.00 .00 00* JV-Ananda
for 30% of 4
evidence bid value * JV-M/s A.C.Roy Shipyard *
of access & Co
*3 marks
to for 90% bid
adequate value
working *4 marks
capital for 100%
and above
of bid value
2018- *2 Marks Turnover Rs. 4 Turnover Rs. 4 Turnover Rs 4
19 for 30% of 123,27,84,696.00 34,17,16,761.00 232,95,13,388.00
bid value * *
*3 marks
for 90% bid 4
value
*4 marks
for 100%
and above
of bid value
Evidence of access 2 Submitted 2 Submitted Rs. 2 Submitted Rs. 2
to line(s) of credit Rs.1.70 crore dtd 2.00 crore dted 3.00 crore dtd
and availability of 17.2.2020 JV 18.2.2020 JV- 15.2.2020 JV
other financial RELEMECH Manavta Merolyn
resources facilities
(10% of contract
value) certified by
the Bankers
Bank solvency 1 Submitted dtd 1 Submitted JV- 1 Submitted dtd 1
certificate not more 10.2.2020 JV- M/s A.C Roy & 20.1.2020 JV-
than 3 months old RELEMECH Co dtd Ananda Shipyard
12.2.2020
SL Criteria Sub Methodology Max M/S FMC-Relemech-AAAD.. Mark M/s. Manvta Mark Ms. Meroly
Page No.# 21/35
N Criteria Used for mar s Tradelink Pvt. s Engineerin
o. Computation
of Marks k Ltd. Ltd.
Strength strength
Highest 1.(40% 10 Construction of oil tanker M.T.CASCADE-1 Cost of 10 Const. of two 10 Supply of
value of Project cost- project=(Tk. 18,20,25,000.00) Rs.16,05,35,780.00* Date of unit Flotilla.. in 1000 HP w
complete minimum 3 completion 30.12.2013 JV-FMC Indo accessorie
d projects Nos.) (6 Bangladesh of
marks) protocol route . Project(Tk
2.(50% Cost of 62,656.48
Project cost- project= Rs. 48,77,76,9
minimum 2 32,47,65,000.0 * Certifica
Nos.) (8 0 JV -M/s A.C 19.4.2013
marks) Roy & Co. Date Ananda sh
3.(80% of delivery
Project cost-1 19.1.2018
No and
above) (10
marks)
Number Range 1 5 1. 5 1.Const of two 5 1.Supply o
of *upto 1)( 3 1.Const. of oil tanker MT CASCADE-1 Rs. 16,05,35,780.00* unit Flotilla.... 1000 HP w
complete marks) Date of completion 30.12.2013 JV- FMC in Indo accessorie
d Range 2 Bangladesh of
project(mi *upto 2)( 4 protocol route. Project(Tk
nimum marks Cost of project 62,656.48
projects) Range 3 Rs 48,77,76,9
*upto 3 and 32,47,65,000.0 * Certifica
above)( 5 0 JV-M/S A.C 19.4.2013
marks Roy & Co. Date Ananda sh
of delivery 2. 1 no 18
19.1.2018 cutter suc
2. Contract for house boa
design,.... of oil other acce
spill response . Cost of
essel... for Project(Tk
Chennai Port 11,24,22,2
Trust Cost of Rs
project= Rs. 9,98,24,19
12,97,74,620.00 JV - Anan
. Hand over Shipyard
18.5.2019 JV- 3.10 nos
M/s A.C Roy & House Boa
Co and other
3. Design .. accessorie
Const. & Supply Cost of
RORO vessels. project=(T
Cost of Project- 5,30,28,93
Rs. Rs
10,03,83,300(J 4,67,42,02
V-M/s A.C Roy Delivered
& Co) Date of 17.1.2016
delivery Ananda Sh
07.03.2017
1 Position 1 2. JV- 1 Project 0.5 Consultan
Relemech Project leader(J.N.Roy) Engineer(Rame (Gautam R
st Prabhu)
Qualification 3. BE in BE Naval
or Experience naval Architecture 42 years Civil/Mechanical Architect(I
15 years years
2 Position 1 4. FRP 1 Marine 0.5 Consultan
Boat Specialist(P.Sarkar) Engineer, Partha Bu
Rajesh Desai Roy
Page No.# 22/35
Qualification 5. BE in B.E Merine 25 Neval
or Experience Chemical 48 years years Architect(I
years
3 Position 1 6. QAC 1 Quality control 0.5 Consultan
Engineer(Pinaki Chatterjee) Engineer, (Supratik
Priyesh Saxena) Banerjee)
Qualification 7. BE Mechanical Naval
or experience Diploma in DIP/MEC 19 years Sl.1 to 3 Consent letter & copy 8 yers Architect(I
of certificate submitted years
4 Position 1 8. JV- 0.5 Non technical 0.5 Manager
FMC Technical Director(Md. Shahjahn) staff(Harinder (Projects_
Kaur) Kalyan Pal
Qualification 9. B.Com, 15 B. Tech(M
or Experience Masters in Eng, Mech, 38 years years 37 years
5 Position 1 10. 0.5 Manager(C
Technical Advisor(Mohanlal Pillai) ordination
Niyogi
Qualification 11. B.Sc B. Tech(Ci
or Experience in Marine Eng. Etc 40 years years
6. Position 1 12. 0.5 4 nos of Self Foreman(T
Advisor(K.M Hafizur Rahman) Declaration Roy)
submitted
Qualification 13. Consent letter B. Tech,M
or Experience Master Mariner(U.K) 39 years & copy of year
certificate not
submitted
7 Position 1 14. 0.5 JV Inspiration Foreman,A
Advisor(QA), Joynal Abedin Khutia
Qualification 15. M. Sc. Diploma M
or Experience Mech. 18 years year
8. Qualification 16. Graduate
or Experience Bangladesh Marine Academy 17 years years
9. Position 1 17. Sub- 0.5 Foreman S
Asstt. Eng.(Ripan Barua) Bose
Qualification 18. Graduate
or Experience Diploma in Eng(Mech) 7 years years
10 Position 1 19. Asstt. 0.5 ` Ashok Tun
Engineer(Md. Shawkat Ali)
Qualification 20. . 0.5 B.A 32 yea
or experience Diploma in Mech. Eng. 17 years(Sl. 4 to 10 consent letter & Self declar
certificate not submitted) submitted
consent le
certificate
found.
Major Item 0.5 21. 0.5 JV-M/s A.C. ARC weldi
equipment number JV-RELEMECH Welding Machine 4 nos Roy & Co machine 5
proposed Diesel
to carry welding
out the generator set
contract 2 nos
Page No.# 23/35
Item 0.5 22. 0.5 Inverter 0.5 MIG/TIG w
number Gas cutting set 2 nos welding machine 1
machine 33
nos
Item 0.5 23. 0.5 Diesel 0.5 Manual Ga
number Grinding Machine 2 nos Engine(100 cutting se
BHP) 1No. nos.
Item 0.5 24. 0.5 DG Sets 65 0.5 PUC Autom
number Drilling Machine 2 nos. KVA(440 Volt) oxy acetyl
1 No. cutting ma
8 nos
Item 0.5 25. 0.5 DG Sets 50 0.5 Magnetic
number Hand winch 1 No. machine-3
KVA (440
Volt) 1 no
Item 0.5 26. 0.5 Lightening 0.5 Mobile cra
number Chin Pilley 1 Ton 1 no Generator(22 no.
0 olt) 7.5.KVA
(1 no)
Item 0.5 27. 0.5 Compressor 0.5 Hydra 1 n
number Chain Pilley 2 Ton 1 no with diesel
engine
7.5.KVA 1 No.
28.
Item 0.5 29. 0.5 Propeller 0.5 Genset 1 n
number Chain Pilley 3 ton 1 no shafts with
stongear
assembly 2
nos
Item 0.5 30. 0.5 Transformer 0.5 Electric m
number Hyd Jacks 4 nos welding driven air
machine 3 compresso
nos
nos
Item 0.5 31. 0.5 Electric 0.5 Grinding
number Wire rope sealing 4 nos welding sets 5 Machine 2
nos
SL No Criteria Sub Criteria Methodology Max mark M/s FMC-Relemech- M/s Manvta M/S Merolyn
Used for AAAD Tradelink Pvt. Ltd. Engineering Pvt.
computation of Ltd.
Page No.# 24/35
marks
Strength Mar Strength Mar Strength Mark
k k
5 Proposed Methodology of execution and Work 5` 3 Nos. 5 Methodology 2.5 Submitted 2
Programme (As per Scope of work) Methodology /Work but not in
Submitted RO Programme details (JV-
RO, 60 PAX, submitted, Merolyn)
VVIP/ VIP but not in
BARCHART details. JV-
(JV- Inspiration
RELEMECH) Mariene
6 Undertaking/Declaration of safety rule- 5 Submitted but 2.5 Submitted 5 Submitted 2.5
regulations & safety appliances. not in details JV- but not in
(JV- Inspiration details
RELEMECH) Mariene (JV-
Merolyne)
7 Proof of availability of maintenance facility. 5 Submitted t 5 Submitted 0 Submitted 0`
Bidder should have local ship building Panikhaiti, but in Pune but in
infrastructure with valid documents for last 3 Guwahati, No Local Howrah.
years Copy of Trade shipyard JV- No Local
License & Inspiration shipyard
Affidavit Mariene, JV-Merolyn
submitted (JV-
RELEMECH)
8 The bidder should have successfully been 10 Submitted but 2.5 Details not 0 Not found 0
running inland of offshore vessel based year not found Form
cruising /Marine business for last 3 year mentioned No. 1
JV-FMC certificate of
Incorporation
Total 70 56.5 44.5 44.5
9 Presentation 30
Grand Total= 100
Approved by Managing Director, Assam Tourism Development Corporation Ltd.
25. Mr. Choudhury learned Senior Counsel for the petitioner argued that the assessment carried out by the bid evaluation committee was not as per the necessary weightage which ought to have been given to the lead partner of the joint venture and/ or consortium. For instance, it was his contention that the turn over mentioned by Relemech INC, one of the constituents of the consortium, respondent No. 5 did not execute any similar nature of work during the last seven years. On the other hand, the petitioner in the joint venture of M/s Merolyn-Ananda Shipyard executed and submitted credentials, of similar nature of work performed during the last seven years. The turn over relevant for evaluation of the tender which ought to have been considered was the turn over only in respect of the lead partner of Page No.# 25/35 the respondent No.5 and not the combination of all the three entities . Similarly the lead partner of respondent No. 5 in technical bid submitted the Balance sheet, Profit & Loss Account and Audit report for last one year but not for last three years. The Relemech INC as the lead partner of the respondent No. 5 was required to offer the availability of its equipment and organization in the place of work and the foreign company i.e. FMC-AAAD would only provide their experience in the field of expertise of managerial staff, technical knowhow etc. The petitioner as one of the constituents of the joint venture, Merolyn Ananda Shipyard being the Indian Company executed and furnished details of completion of several similar nature of works in the last seven years alongwith necessary particulars of equipment etc but the bid evaluation committee awarded similar marks i.e. 15 to both the petitioner and respondent No. 5 which is discriminatory. The bid evaluation committee while awarding marks for serial No.2(a) of the evaluation matrix took into consideration the total turnover of the consortium respondent No. 5 without looking into the capacity of the Indian company at all. On the other hand the petitioner alone had a total turnover of Rs. 440 Crores compared to 365 Crores of the respondent No. 5 consortium jointly. It was further submitted that while assessing capability under serial No. 7 of the evaluation matrix pertaining to proof of availability of maintenance facility the bid evaluation committee did not give any marks to the petitioner inasmuch as the petitioner in its communication dated 18.2.2020 gave undertaking that they had understanding with a local ship builder for infrastructure, maintenance facility etc which was discriminatory.
26. Before entering into the scope of judicial review, in my considered opinion it would be proper to discuss on the concept of joint venture / consortium to be understood in terms of definition "bidder/contractor" as defined under Clause 1(i) (b) of the General Conditions of Page No.# 26/35 the contract in the bid documents. The petitioner is one of the constituents in the joint venture alongwith M/s Ananda Shipyard and Slipways ltd., a Company having its registered office at Dhaka within Bangladesh and on the other hand respondent No.5 is a consortium of M/s Relemech INC a proprietorship firm having its registered office at Guwahati, FMC Dockyard ltd, a limited liability company incorporated under the Bangladesh Companies Act having its registered office at Chitagong and AAD Corporation, a registered proprietorial firm having its registered office at Guwahati. The petitioner in support of said status of joint venture submitted a registered deed of agreement and on the other hand respondent No. 5 also submitted a consortium agreement notarised by the competent notary at Guwahati. On the basis of said agreements put on record, there is no dispute that the petitioner is one of the constituents of the "joint venture" M/s Merolyn Engineering Pvt. Ltd and M/s Ananda Shipyard and Slipways ltd. and on the other hand respondent No. 5 is also a joint venture /consortium of M/s Relemech INC-FMC Dockyard ltd-AAD Corporation.
27. In New Horizons Limited and another vs Union of India (supra), the Hon'ble Apex Court explained the legal status of the expression " joint venture" on the basis of the following factual matrix. The New Horizons Limited (NHL) participated in a tender issued in various Newspapers on 22.4.1993 by the department of Telecommunication, Telecom District, Hyderabad for competent agencies for printing, binding and for supply of specified number of telephone directories in English for three annual issues commencing from 1993. Therein amongst other participants, NHL participated as the joint venture company established by Thomson Press (India) Limited (TPI), Living Media (India) Limited (LMI), World Media Limited (WML) and Integrated Information Pvt. Ltd (IIPL), a wholly- owned subsidiary of Singapore Telecom wherein 60% of shares were held by TPI, LMI, WML and other Page No.# 27/35 companies in the same group and 40 % of shares were held by IIPL. In the said bid the overview of each of the parent companies namely, TPI, LMI, WML and IIPL was also given in the tender offered. The bid of NHL was rejected whereafter the same was challenged before the Hon'ble Delhi High Court and finally the Hon'ble Division Bench of Delhi High Court vide its judgment dated 15.10.1993 the writ petition was dismissed. While dismissing the writ petition the High Court observed that a joint venture is a one-time grouping of two or more persons in a business undertaking and unlike a partnership, a joint venture does not entail a continuing relationship among the parties and on that view the High Court held that there was no joint venture as such and there was only a certain amount of equity participation by a foreign company in NHL. Holding against the view of the High Court the Apex Court held as follows:
"24. The expression "joint venture" is more frequently used in the United States. It connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject - matter, a right to direct and govern the policy in connection therewith, and duty , which may be altered by agreement , to share both in profit and losses(Black's Law Dictionary, 6 th Edn. P.839) . According to Words and Phrases, Permanent Edn., a joint venture is an association of two or more persons to carry out a single business enterprise for profit (p. 117, Vol.23)."
28. The Apex Court in Gammon India Limited Vs Commissioner of Customs, Mumbai reported in (2011) 12 SCC 499 applying the principle of "lifting the corporate veil" as in New Horizons (supra) and the findings therein it was held that the joint venture companies' technical experience could only be the experience of partnering companies and the technical experience of all constituents of NHL were liable to be cumulatively reckoned in the tender proceedings and any one of the constituents was competent to act on behalf of the joint venture company. Accordingly it was further held that the New Horizons(supra) recognized a joint venture to be a legal entity in the nature of partnership of constituent companies. In Page No.# 28/35 other words the partnership concept in relation to a joint venture was accepted by the Hon'ble Supreme Court.
29. In Faqir Chand Gulati Vs Uppal Agencies Private Limited and another (supra) the Apex Court accepted the definition of joint venture as defined in Black's Law Dictionary as follows:
"24 Joint venture- A business undertaking by two or more persons engaged in a single defined project. The necessary elements are: 1. An express or implied agreement 2, a common purpose that the group intends to carry out 3. Shared profits and losses and 4. Each member's equal voice in controlling the project."
30. From the aforesaid decisions it can be concluded that a joint venture is a legal entity in the nature of partnership firm engaged in the joint undertaking of a particular transaction for mutual profit having community of interest in the performance of the subject matter.A "joint venture" is formed by the constituent companies, firms etc and the experience of the various constituents, financial resources and any other qualifying criteria specified in a tender satisfied by anyone of the constituents forming the joint venture are to be taken into consideration as emanating from a single bidder or contractor as defined under Clause 1(i)(b) of the General Conditions of Contract of bid documents. Accordingly the submission of Mr. Choudhury learned Senior counsel for the petitioner that weightage must be given only to the lead member of the joint venture /consortium and same is mandatory on the part of the lead member of the consortium /joint venture to satisfy each and every eligibility /technical criteria cannot be accepted.
31. As hereinabove stated the bid committee consisted of seven members including the representative of the Project Management Consultancy (Luit Valley Engg.). The members of the said committee are mostly technical persons. The technical evaluation of the technical proposal was carried out by the said committee. From the said evaluation it is found that Page No.# 29/35 marks were given to three participants in the technical bid alongwith comments in the respective columns of the evaluation criteria. The total mark against a specified "criteria" was subdivided and against respective components marks were given
32. Mr. Choudhury learned Senior Counsel questioned the act of awarding the marks to the various participants in this regard. It would be proper to the examine the extent of the scope of judicial review of this court under Article 226 of the Constitution of India. This court cannot sit as an appellate authority in order to decide the correctness of the assessment made by the bid evaluation committee formed by the technical members. In this respect though there are various decisions of the Hon'ble Supreme Court, in my considered opinion it would be proper to take note at first the decision rendered by the Hon'ble Supreme Court in Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651 wherein the Apex Court laid down the principle required to be adhered to while exercising the scope of judicial review.
"94. The principles deducible from the above are :
(1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
Based on these principles we will examine the facts of this case since they commend to us as the correct principles .
"
33. The said principle was considered subsequently by the Hon'ble Supreme Court in various of its decisions. In Jagdish Mandal vs. State of Orissa and others reported in (2007) Page No.# 30/35 14 SCC 517, the Hon'ble Supreme Court relying various decisions of the Apex Court including Tata Cellular Vs. Union of India (supra), Sterling Computers Ltd. Vs. M & N Publication Ltd, reported in (1993) 1 SCC 445, Raunaq International Ltd Vs I.V.R. Construction Ltd. reported in (1999) 1 SCC 492, Air India Ltd Vs. Cochin International Airport Ltd reported in (2000) 2 SCC 617 held as follows:
"22.Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out . The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry , to make mountains out of molehills of some technical/ procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review should be resisted . Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the prject cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
Or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:
"the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/ contractor or distribution of State largesse(allotment of sites/shops, grant of licences, dealerships and franchises ) stand on a different footing as they may require a higher degree of fairness in action."
The Apex Court in Michigan Rubber(India) Limited Vs. State of Karnataka and others reported in (2012) 8 SCC 216 relying the decision of Jagdish Mandal(supra) held as follows:
"24. Therefore , a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: " the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached ? and
(ii) Whether the public interest is affected ?.
If the answers to the above questions are in the negative, then there should be no interference under Article 226." The Hon'ble Supreme Court in Civil Appeal No. 2197 of 2020 Bharat Coking Coal Ltd Vs. Page No.# 31/35 AMR Dev Prabha decided on March, 18, 2020 downloaded from 2020 SCC On Line SC 335 while explaining the scope of judicial review in tenders after considering some of the aforesaid decisions held as follows:
""29. The scope of judicial review in tenders has been explored in - depth in a catena of cases. It is settled that constitutional courts are concerned only with lawfulness of a decision, and not its soundness . Phrased differently, Courts ought not to sit in appeal over decisions of executive authorities or instrumentalities. Plausible decisions need not be overturned, and latitude ought to be granted to the State in exercise of executive power so that the constitutional separation of powers is not encroached upon. However allegations of illegality, irrationality and procedural impropriety would be enough grounds for courts to assume jurisdiction and remedy such ills. This is especially true given out unique domestic circumstances, which have demonstrated the need for judicial intervention numerous times. Hence , it would only be the decision - making process which would be the subject of judicial enquiry, and not the end result (save as may be necessary to guide determination of the former)?"
34. From the aforesaid decisions it can be concluded that while exercise the jurisdiction of judicial review in a tender under Article 226 of the Constitution of India it must be borne in mind that the concept of "fair play in the joints" is always conjoined in the functioning of the administrative body working in the administrative sphere or quasi administrative sphere. The said administrative body must have freedom of contract which is a commercial transaction. Principles of equity and natural justice normally have no influence. If the decision making process adopted by the said administrative body is for the benefit of the public interest and as such, a court before interfering in the tender or contractual matters in exercise of power of judicial review must in my considered opinion, see whether refusal by the tender evaluation committee to consider the tender of the petitioner was proper and reasonable . If the same is held to be unreasonable the decision making process is required to be interfered by this court.
35. On perusal of the evaluation it is found that the committee assessed the various documents submitted in support of fulfilling various criteria by the parties against their respective bids and upon assessment thereof awarded marks to the respective bidders. As hereinabove already stated that the bid evaluation committee was formed with members of Page No.# 32/35 technical backgrounds and the eligibility criteria as per evaluation matrix includes of technical criteria to be satisfied by the bidders. While awarding the marks, Mr. Choudhury, learned senior counsel for the petitioner submitted that there were certain deficiencies. For instance the petitioner was awarded '0' marks at serial No.7 pertaining "to proof of availability of maintenance facility". On perusal of the evaluation of technical proposal it is found that the respondent No. 5 submitted copy of trade license alongwith affidavit thereby referring Panikhati within Guwahati to be the site for availability of maintenance facility . On the other hand, the petitioner submitted Howrah within West Bengal as the availability of maintenance facility and as such it was remarked that no local shipyard was cited by the evaluation committee. The criteria stipulate that the said facility must be "local". Thereafter upon such assessment, 5 marks was awarded to the respondent No. 5 and '0' marks to the petitioner. This is taken into reference only in order to show as an instance that the bid evaluation committee while awarding marks also specified the reason for such award of mark at the time of assessment. Whether the said markings are proper that in my considered opinion cannot be entered into by this court within the scope of judicial review inasmuch as in Tata Cellular (supra) the Apex Court held that it was open to the court to review the decision maker's evaluation of the facts and the court would intervene where the facts taken as a whole cannot be taken into logical conclusion of the decision maker. But on the basis of the reasonings which forms the basis of awarding the marks, I am of the opinion that the conclusion drawn before awarding the marks cannot be held as arbitrary or discriminatory.
36. It is for the employer/ respondent ATDCL as to whether the said criteria of having local ship building infrastructure can be deviated or not. As the petitioner was awarded '0' marks it can be inferred that the said condition of having local ship building infrastructure is Page No.# 33/35 mandatory. In view of the same this court cannot enter and reassess the marks already awarded by the bid evaluation committee. On perusal of the said evaluation I do not find any fault with the decision making process.
37. Again considering the assessment done by the bid evaluation Committee it is found that it had marked against the ingredients/ elements essential to the satisfaction of the criteria in the evaluation matrix. The said ingredients/ elements were assessed by the bid evaluation committee consisting of technical persons and naturally from the point of view of this court the said ingredient/element forming the basis of each criteria must be taken as the requirements of the employer, ATDCL. This court having no such expertise must accept the same to be appropriate vis-a-vis the contractual job. Deficiencies of the parties in the technical evaluation were pointed out by the said committee and marks were awarded accordingly. The said marks formed the basis of the decision making process.
38. The justification of marks so awarded cannot be entered into by this court inasmuch as this court is not an appellate forum of the tender authority of the tender authority as hereinabove observed. But the process adopted in arriving at a final decision on the basis of the evaluation of the bids of the parties to the biding process cannot be faulted merely on the submission of the learned Senior counsel for the petitioner for the following reasons:-
(a) the qualification and criteria of the lead member of respondent No. 5 was not considered- it is held that the same is not required once anyone of the constituent members of the "joint venture" or the "consortium" satisfies the criteria as per the tender conditions,
(b) the division of the 'criteria' into various sub-components/ elements by the bid evaluation committee cannot be faulted as the same lies within the domain of Page No.# 34/35 the employer.
(c) the bid evaluation committee has the capability of deciding the technical competence of the bidders in order to carry out the contractual job;
(d) no perversity observed in taking the final decision by the said committee.
39. Thus if the said points as concluded are considered, I am not inclined to hold that the process adopted in awarding marks by the bid evaluation committee is unreasonable, arbitrary and the process adopted by the bid evaluation committee was to favour any of the participants in the biding process.
40. A preliminary objection was raised by Mr Das, learned Senior Counsel for the respondent No. 5 in respect of locus standi of the petitioner to file the writ petition challenging the tender evaluation process wherein the petitioner was not the participant as a single entity rather it participated as a joint venture alongwith M/s Ananda Shipyard and Slipways ltd. the other constituent.
41. On perusal of the writ petition it is found that the petitioner No. 1 is M/s Merolyn- Engineering Works Pvt. Ltd, a limited company and lead partner in Merolyn Ananda Joint Venture and it is stated in the writ petition that petitioner No.1 authorised the petitioner No. 2, the executive officer to represent the company, petitioner No. 1. I have perused the joint venture agreement of the petitioner No. 1 and the other constituent, M/s Ananda Shipyard and Slipways ltd. which is enclosed to the writ petition and therein under the heading "validity of said agreement" it is stipulated that the joint venture shall be automatically terminated in case the contract in terms of said tender was not awarded. From the affidavit in opposition by the private respondent No. 5 it is seen that vide letter dated 29.5.2020 it was notified to Page No.# 35/35 the said respondent No. 5 that its bid dated 21.2.2020 for execution of the work under the said notice inviting bid dated 29.5.2020 was accepted by respondent ATDCL. In terms of the said letter dated 29.5.2020 and pursuant to the signing of the contract, notice to proceed with the work was issued to respondent No. 5 Now if we consider the validity of the joint venture agreement entered into by the petitioner with its other constituent, M/s Ananda Shipyard and Slipways ltd., the said joint venture agreement on the basis of which a jural relationship developed between the petitioner No.1 and the other constituent of the joint venture came to an end "automatically" after awarding of the contract to the respondent No.5. Once the validity of said agreement stood terminated "automatically" as such the power of attorney authorizing the present petitioner No.1 to act on behalf of M/s Ananda Shipyard and Slipways Pvt. Ltd had also lost its validity. In view of the same, the petitioner under its sole entity without the authority of the other constituent M/s Ananda Shipyard & Slipways ltd. has no locus standi to file this writ petition moreso when the petitioner No. 1 sought to be declared as the selected bidder with all consequential reliefs and admittedly the petitioner No. 1 solely does not fall within the definition of "bidder" under Clause 1(i) (b) of the General Conditions of Contract. The relief even if the writ petition is allowed cannot be granted to the petitioner No.1 alone. Accordingly this writ petition stands dismissed. No cost. Send back the records.
42. Interim order directing the parties to maintain status quo as on 5.6.2021 stands vacated.
JUDGE Comparing Assistant