Karnataka High Court
M/S Mcphar International Pvt. Ltd vs Deputy Director General on 27 May, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.1905/2020 (GM-TEN)
BETWEEN:
M/S.McPHAR INTERNATIONAL PVT.LTD.,
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
LIBERTY BUILDING
SIR VITHALDAS THACKERSAY MARG
NEW MARINE LINES
MUMBAI-400 020
ALSO HAVING ITS OFFICE AT
#2-674/B/3/1, BANJARA HILLS ROAD
NO.12, HYDERABAD-500 034
REPRESENTED BY ITS CFO
AND AUTHORIZED SIGNATORY
MR. ARAVIND KRISHNASWAMY.
...PETITIONER
(BY SRI S S NAGANAND, SR.COUNSEL A/W
SRI VIKRAM UNNI RAJAGOPAL, ADV.)
AND:
1. DEPUTY DIRECTOR GENERAL
REMOTE SENSING AND AERIAL SURVEYS
GEOLOGICAL SURVEY OF INDIA
VASUDHA BHAVAN
KUMARASWAMY LAYOUT
BENGALURU-560 111.
2
2. TECHNICAL EVALUATION COMMITTEE
GEOLOGICAL SURVEY OF INDIA
VASUDHA BHAVAN
KUMARASWAMY LAYOUT
BENGALURU-560 111.
3. DIRECTOR GENERAL
GEOLOGICAL SURVEY OF INDIA
27, JAWAHARLAL NEHRU ROAD
KOLKATA-700 016.
4. THE DIRECTOR
PSS-P & M-I DIVISION
GEOLOGICAL SURVEY OF INDIA
27, JAWAHARLAL NEHRU ROAD
KOLKATA-700 016.
....RESPONDENTS
(BY SRI M.B.NARGUND, ASG A/W
SRI S.R. DODAWAD, CGC)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE PROCEEDINGS DATED 06.01.2020 HELD BY R2
ANNEXURE-A; QUASH THE COMMUNICATION DATED
13.01.2020 ISSUED BY R4 TO R1 ANNEXURE-B; QUASH
CLAUSE 3.14(6) OF TENDER PROPOSAL EVALUATION AS
MODIFIED BY THE CORRIGENDUM DATED 17.09.2019
ANNEXURE-J ISSUED BY R1 AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 12/04/2022 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
The petitioner who failed to technically qualify in Global Tender bearing No.D-34/01/2019-20/45 dated 13.08.2019 is before this Court praying for the following reliefs:
i. Quash the proceedings dated 06.01.2020 held by Respondent No.2 (Annexure-A);
ii. Quash the communication bearing No.138/SP-
13/PSS-P & M-1/Retender/Block-5/2019 dated 13.01.2020 issued by Respondent No.4 to Respondent No.1 (Annexure-B);
iii. Quash Clause 3.14(6) of Tender Proposal Evaluation as modified by the Corrigendum bearing No.D-34/01/2019-20/45 dated 17.09.2019 (Annexure-J) issued by Respondent No.1;
iv. Quash clause 3.13 as modified by the
Corrigendum bearing no.d-34/01/2019-20/45
dated 17.09.2019 (Annexure-J) issued by
Respondent No.1, and direct Respondent No.1 to consider the representations of the Petitioner dated 26.09.2019 (Annexure-K) and 07.11.2019 4 (Annexure-L) and implement Clause 4.7 of RBI Master Direction RBI/FED/2015-16/4 dated 01.01.2016 (Annexure-M);
v. Direct the Respondents to implement the policy decision of the Government of India in the Public Procurement (preference to Make in India), Order 2017 (Annexure-N);
vi. Quash Global Tender Notice bearing No.
D-34/01/2019-20/45 dated 13.08.2019
(Annexure-G) issued by Respondent No.1, and direct the Respondent No.1 to issue fresh tender notification in relation to Block Nos.5 and 7 incorporating the above changes and provide for evaluation in a fair and objective manner.
2. Brief facts of the case are that, the first respondent issued Global Tender Notice dated 13.08.2019, inviting bids for engaging Aerogeophysical Survey Provider(s). The tender work was to carry out Multi-sensor Aerogeophysical Surveys over Obvious Geological Potential (OGP) areas of India. In that regard, for the said year it was proposed to survey two OGP Blocks i.e., Blocks 5 and 7. As per Annexure-G tender notice dated 13.08.2019, date of pre- 5 bid meeting was 26.08.2019 and the last date for uploading the bid was 23.09.2019. The date for opening the technical bid was 24.09.2019 and opening of price bid was 14.10.2019. The tender notice provided that the bidder can apply for one or more Blocks by submitting separate Earnest Money Deposit (for short "EMD") for each Block i.e., Block Nos.5 and 7. The petitioner submitted his tender and the other two consortium of M/s.MPX International Corporations and M/s.Saarathi Airways Private Limited; consortium of M/s.Sander Geophysics Limited, Canada and M/s.Pan India Limited also submitted their tender. Before submitting the tender, all the three bidders participated in the pre-bid meeting held on 26.08.2019. The Technical Evaluation Committee evaluated the tenders of the petitioner as well as two others stated above and found that the other two named above are technically qualified, having scored 80 points out of 100 and the petitioner having scored 78 out of 100 was found not technically qualified. Challenging the 6 proceedings of the Technical Evaluation Committee as well as challenging clause 3.14(6) and clause 3.13, the petitioner is before this Court.
3. Heard learned Senior Counsel Sri.S.S.Naganand for Sri.Vikram Unni Rajgopal learned counsel for petitioner and Sri.M.B.Naragund, Additional Solicitor General for Sri.S.R.Dodawad CGC for respondents. Perused the writ petition papers.
4. Learned Senior Counsel for the petitioner submits that the action of the respondents particularly Technical Evaluation Committee/respondent No.2 in holding that the petitioner is technically not qualified is wholly arbitrary, unreasonable and unsustainable. It is submitted that the petitioner is the successful bidder and has completed the Aerogeophysical Survey in respect of Block Nos.1, 4, 9 and 11 and as such, the Technical Evaluation Committee could not have disqualified the petitioner on the grounds of technical qualification for 7 Blocks 5 and 7. The petitioner was awarded 94.5 marks out of 100 marks while awarding contract in relation to Block Nos.9 to 11 whereas in the present technical evaluation, the petitioner was arbitrarily awarded 78.5 marks out of 100 only to disqualify the petitioner. It is submitted that to qualify technically, a tenderer shall have to secure 80 marks out of 100. Learned Senior Counsel would submit that awarding of marks and technical evaluation is wholly arbitrary and is not in accordance with the tender conditions. It is alleged that the award of marks to the petitioner is to ensure that the petitioner would not technically qualify in order to favour foreign bidders.
5. Learned Senior Counsel submits that clause 3.14(6) provides evaluation of performance of existing Project Implementing Agency (PIA), which also provides for negative marking. It is contended that the petitioner has been singled out by negative marking and the petitioner is 8 treated with invidious discrimination. Permitting negative marking while evaluating the performance of PIA who were allotted work in previous projects is discriminatory and violative of Article 14 of the Constitution of India. It is submitted that the petitioner was the only bidder who participated in the tender process who was allotted Blocks in the previous projects and other two participants were neither allotted nor have carried out similar works in the previous years, as such, they were not subjected to negative marking. According to learned Senior Counsel, providing negative marking under clause 3.14(6) is not a reasonable classification and favours foreign bidders. Learned Senior counsel further submitted that when the petitioner has successfully completed the projects entrusted by the respondent-Authorities, awarding negative marking is wholly unjust and unreasonable. It is submitted that delay in completion of the projects is not attributable to the petitioner and delay occurred solely due 9 to the action of the respondents. Thus he submits that the entire tender evaluation process is arbitrary.
6. Learned Senior counsel referring to clause 3.13-Price Bid Format, submits that the same is violative of Article 14 of the Constitution of India, in that, the petitioner is denied to submit his bid in USD when the overseas bidders are permitted to submit their bid in USD. Clause 3.13 provides for quoting price in Indian Rupees or in US Dollars and the evaluation of price bids would be done uniformly in INR with conversion rate to be used as Reserve Bank of India reference rate, fixed on the day of opening of the price bids. Further it also states that the payments will be made only to the lead partners in the consortium and payment would be made for the amount and in the currency quoted by the bidder. It is contended that due to fluctuations in the currency value, which are based on rate of exchange, evaluation and comparison of bids made in different currencies would be inaccurate. If 10 the petitioner quotes the price in INR, he would be paid in INR. If the tender is awarded, a tenderer would have to hire equipments, aircraft, etc., to execute the work and to pay in foreign currency, which would have bearing on the payments to be made. It is submitted that the clause relating to payments was modified under corrigendum dated 17.09.2019 (Annexure-J) without considering the representations of the petitioner and the amended clause would favour the foreign bidders. Fluctuations in foreign currency rates would not affect foreign bidders whereas it would affect the Indian bidders who quote their price in INR. Thus, the learned Senior Counsel would submit that the clause 3.13 as well as clause 3.14(6) of tender notification dated 13.08.2019 are arbitrary, unreasonable and discriminates bidders who quote price in INR and USD.
7. Learned Senior Counsel referring to Annexure-N/ order dated 29.05.2019 of the Ministry of Commerce and Industry submits that certain benefits are extended to 11 bidders in public procurement under Make in India policy. It is submitted that the tender conditions should not result in unreasonable exclusion of local suppliers who would otherwise be eligible. When the Government of India has taken a policy decision to encourage the local suppliers or local bidders, the same should be given effect to. Thus, he prays for allowing the writ petition.
8. On the contrary, learned ASG for respondents submits that there is no merit in any of the contentions raised by the petitioner and submits that neither clause 3.13 nor clause 3.14(6) are arbitrary or unreasonable. Learned ASG inviting attention of this Court to Annexure-A/Minutes of the Technical Evaluation Committee which the petitioner has prayed to quash submits that the petitioner is found not technically qualified, at the same time, the Technical Evaluation Committee technically qualifies other two bidders. But the other two bidders who are technically qualified are not 12 parties to the present writ petition. The respondents in their statement of objections filed on 24.02.2020 have specifically contended that the writ petition is liable to be dismissed for non-joinder of necessary parties, i.e., the beneficiaries from Annexure-A/Minutes of Technical Evaluation Committee. Even though the statement of objections was filed on 24.02.2020, even to this date, for more than two years, the petitioner has not taken any steps to implead them as respondents, which itself indicates that it is not a bonafide writ petition.
9. Learned ASG submits that it is not open for the petitioner to contend that clause 3.13 as well as 3.14 (6) of tender notice dated 13.08.2019 are arbitrary, unreasonable and discriminatory, since the petitioner participated in the pre-bid meeting and submitted an undertaking of acceptance of terms and conditions of tender along with the bids as required under Clause 2(m) of the tender notice. Further the learned ASG would submit that the petitioner's representation with regard to 13 Price Bid Format was considered and to some extent price bid format was modified under Annexure-J dated 17.09.2019, to the effect that if the lead partner of the consortium is an Indian Company or Agency it has to quote only in INR and payment will be made in INR and in case of foreign company or lead partner of the consortium is a foreign company or agency, it has to quote only in USD and payment will be made in USD only. Further, learned ASG placing reliance on the decision of the Hon'ble Apex Court in JAGADISH MANDAL v/s STATE OF ORISSA AND OTHERS reported in (2007)14 SCC 517 submits that evaluating tenders and awarding contracts are essentially commercial functions and if the decision is bonafide and is in public interest, the Courts normally would not interfere even if a procedural abression or error in assessment or prejudice to a tenderer, is made out. Further, it is submitted that technical evaluation of a tender is best left to the technical persons and this Court 14 would not be in a position to examine as to whether technical evaluation is proper and correct.
10. Learned ASG submits that a tenderer has to obtain 80 marks out of 100 marks to qualify himself technically. The tender document itself provides procedure for evaluation of tender and it would not be possible for the Technical Evaluation Committee to deviate from the same. Based on the criteria prescribed for technical evaluation, the petitioner could score only 78.5 marks and as such, the petitioner was not qualified technically. It is submitted, assuming that the petitioner is not awarded negative marking, even then the petitioner would not qualify technically. Thus, it is submitted that it is not open for the petitioner to contend that by applying negative marking, the petitioner is singled out.
11. Learned ASG submits that the petitioner was aware of the terms and conditions of the Tender Notification. But the petitioner is before this Court after having 15 accepted and kept quite, until the petitioner is declared disqualified technically. The petitioner having participated in the process accepting the terms and conditions of the tender, could not have challenged subsequently when he came to know that he is not technically qualified.
12. At the first instance, to appreciate the contentions of the petitioner it would be necessary to look into the relevant case laws with regard to judicial review in the matter of evaluating and awarding of tender. The scope of judicial review in the matter of this nature is very limited and further this Court would not sit as an appellate authority to examine the administrative decision of the authorities.
13. The Hon'ble Apex Court in the case of JAGADISH MANDAL (supra) was examining the scope of judicial review in contractual matters, that too in the matter of evaluating and awarding of tender. The ratio laid down by 16 the Hon'ble Apex Court at paragraph 22 in the judgment is as follows:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. 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 17 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 project 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 black-listing 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 18 footing as they may require a higher degree of fairness in action."
14. In AFCONS INFRASTRUCTURE LIMITED v/s NAGAPUR METRO RAIL CORPORATION LIMITED AND ANOTHER reported in (2016)16 SCC 818, the Hon'ble Apex Court was examining the question of evaluation of technical bid and interpretation of clause of tender document and in that circumstance, it is held that owner or employer of the project having authored tender documents, is the best person to understand and appreciate its requirements and interpret its documents. Relevant portion of paragraphs 11, 13 and 15 reads as follows:
"11. Recently, in Central Coalfields Ltd. v. SLL- SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone.19
Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.
13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision-making process or the decision.
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the 20 application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."
15. In MUNICIPAL CORPORATION, UJJAIN AND ANOTHER v/s BVG INDIA LIMITED AND OTHERS reported in (2018)5 SCC 462, the Hon'ble Apex Court was considering the question, whether under the scope of judicial review, the High Court could ordinarily question the judgment of the expert consultant on the issue of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder. While answering the above question, the Hon'ble Apex Court held that the High Court cannot ordinarily interfere with the judgment of Expert Consultant of issues of technical qualifications of a bidder when Consultant takes into consideration various factors including the basis of non-performance of 21 the bidder. The relevant portion at paragraphs 14, 15, 16 and 45 reads as follows:
"14. The judicial review of administrative action is intended to prevent arbitrariness. The purpose of judicial review of administrative action is to check whether the choice or decision is made lawfully and not to check whether the choice or decision is sound. If the process adopted or decision made by the authority is not mala fide and not intended to favour someone; if the process adopted or decision made is neither so arbitrary nor irrational that under the facts of the case it can be concluded that no responsible authority acting reasonably and in accordance with relevant law could have reached such a decision; and if the public interest is not affected, there should be no interference under Article 226.
15. It is well settled that the award of contract, whether it is by a private party or by a public body or by the State, is essentially a commercial transaction. In arriving at a commercial decision, the considerations which are of paramount importance are commercial considerations. These would include, inter alia, the price at which the party is willing to work; whether 22 the goods or services offered are of the requisite specifications; and whether the person tendering the bid has the ability to deliver the goods or services as per the specifications. It is also by now well settled that the authorities/State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation.
16. The State, its corporations, instrumentalities and agencies have a public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise them only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. (See the judgment in Air India Ltd. v. Cochin International Airport Ltd.
45. Evaluating tenders and awarding contracts are essentially commercial transactions/contracts. If the decision relating to 23 award of contract is in public interest, the Courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. The power of judicial review will not be permitted to be invoked to protect private interest by ignoring public interest. Attempts by unsuccessful bidders with an artificial grievance and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness. The exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. In the matter on hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on the part of the expert body while in action. So also, we do not find any bias or mala fides either on the part of the corporation or on the part of the technical expert while taking the decision. Moreover, the decision is taken keeping in mind the public interest and the work experience of the successful bidder."
16. In NG PROJECTS LIMITED v/s VINOD KUMAR JAIN AND OTHERS reported in 2022 SCC Online SC 336, the Hon'ble Apex Court was examining the scope of interference by the High Court in evaluation of tender and 24 awarding and has held that the satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Further, it observed that if the Court finds that there is total arbitrariness or that the tender has been granted in malafide manner, still the Court should refrain from interfering in grant of tender, but instead relegate parties to seek damages for the wrongful exclusion rather than to injunct the execution of contracts. The relevant paragraphs 22 and 23 reads as follows:
"22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the 25 same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead 26 relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."
17. In the background of the above legal position the contention of the petitioner is to be examined. It is contended on behalf of the petitioner that evaluation of technical bid of the petitioner and awarding of marks is totally arbitrary and unreasonable. Global Tender Notice dated 13.08.2019 invites tender for engaging Aerogeophysical Survey Provider(s). The pre-bid meeting was held on 26.08.2019 in which, the petitioner participated and submitted his acceptance for terms and conditions of the tender in a Format as given in Annexure-2 to the Tender documents. The petitioner was aware of the terms and conditions of the tender while 27 submitting his tender and being fully aware of terms participated in the tender process. But the petitioner is before the Court only after he is declared disqualified technically.
18. Clause 3.2 of Tender notice dated 13.08.2019 (Annexure-G) indicates the scope of work of the contract and operational guidelines. Clause 3.14 of Tender Notice provides for criteria for evaluation of bids. Evaluation of proposal was two-stage process. Evaluation of technical and price bids would be by Technical Evaluation Committee. Further it makes it clear that a bidder who qualifies technically only would be eligible to open his financial bid. To qualify in technical evaluation, a tenderer shall meet the minimum threshold of 80 out of 100 marks. Clause 3.14 of tender notice provides criteria for awarding of marks, i.e., Aircraft and Survey Equipments (23 points); Skill and Experience as an Airborne Survey PIA (29 points); Airborne Survey and 28 Deliverables Plan (28 points); Quality Control Plan (10 points) and Ability to Supply Staff and Material Resources (10 points). Further, it also provides for awarding marks for Performance of the existing PIAs and on assessing performance, it could award negative marks to a maximum of 10. The performance of PIAs would be assessed and one of the parameters for evaluation of performance in the previous project would be initiation of project in the given schedule timeline and completion of the data acquisition in the given schedule timeline. Clause 3.14(6) makes it clear that scoring will be based on an assessment of the PIAs demonstrated ability to supply the necessary resources and contingency plan in the event of resource changes. On the above criteria, the second respondent-Technical Evaluation Committee, evaluated the bid of the petitioner as per Annexure-A and awarded total marks of 78.5. Annexure-A/Minutes of the Technical Evaluation Committee makes it clear that the technical bids were evaluated by the members of the Committee as 29 per clause 3.14 of the tender document. The petitioner is awarded 78.5 marks and thereafter on evaluation under clause 3.14(6), the petitioner was awarded 5.5 negative marks. Thus, petitioner's points or marks was reduced to
73. Whether petitioner's points or marks is 78.5 or 73, it would be of no consequence, since the petitioner is not qualified, having not met the minimum threshold of 80 out of 100 marks. If the petitioner's marks or points is taken at 78.5 without negative marking, even then the petitioner would not cross the minimum requirement of 80 out of 100. In other words, without negative marking, the petitioner would not technically qualify. Negative marking has not kept the petitioner out of tender process. Therefore, the contention of the petitioner that the petitioner is singled out by awarding negative marking has no merit.
19. It is submitted that while awarding contract to the petitioner in respect of other Blocks on previous occasion, 30 the petitioner was awarded more marks on similar criteria. The technical evaluation is by the Technical Evaluation Committee, which consists of 10 members who are experts in the field. Clause 3.14 of the tender document states that pricing proposals would be opened for only those technical proposals that meet the minimum threshold of 80 out of 100. The tender work is to carry out Multi- sensor Aerogeophysical surveys over Obvious Geological Potential (OGP) areas of India. In this nature of technical bid, whether a bidder satisfies the tender condition or whether a bidder qualifies technically is primarily upon the satisfaction of the authority inviting tender. The Tender Inviting Authority would be well aware of its requirement and its experts would be in a position to appreciate the capability or readiness of a tenderer to carry out or execute such technical work. In the case on hand, it is for the Technical Evaluation Committee to assess the technical qualification based on the criteria provided under clause 3.14. The Court would not possess 31 the expertise to examine the correctness of the technical evaluation. As held by the Hon'ble Apex Court, evaluating the tender and awarding contracts are essentially commercial functions and evaluation is best left to the wisdom of the experts in the field. Awarding of marks by Expert Evaluating Committee cannot be gone into by this Court under Article 226 of the Constitution of India.
20. Under clause 3.13, a bidder may quote price in Indian Rupees (INR) or in US Dollars (USD). But subsequently, on the representation of the petitioner and similarly situated persons, corrigendum dated 17.09.2019 (annexure-J) was issued modifying certain clauses. Modified clause 3.13 reads as follows:
1. If the lead partner of the consortium is an Indian company/firm/agency, it has to quote only in INR and payment will be made in INR only as per the payment schedule mentioned in the milestone.
2. In case of Foreign Company or Lead partner of the consortium is a foreign company/firm/agency, it has to 32 quote only in USD and payment will be made in USD only as per the payment schedule mentioned in the milestone.
3. Prevailing GOI provision will be applicable in case of GST, TDS etc. In terms of the above modified clause, if the lead partner of consortium is an Indian Company/Firm/Agency it has to quote only in INR and payment also would be made in INR. In case of foreign company or lead partner is a Foreign Company/Firm/Agency, it has to quote only in USD and payments would be made in USD only. As contended by the learned counsel for the petitioner it would not be violative of Article 14 of the Constitution of India if the petitioner is not permitted to submit his bid in USD. Whether a bid is submitted in INR or USD, the evaluation of price bid would be done in INR with conversion rate fixed by the Reserve Bank of India on the day of opening of the price bids as provided under clause 3.13.1. Clause 3.13.1 requires evaluation of price bids uniformly in INR with reference to conversion rate as on 33 the date of opening of the price bids. When the evaluation of price bid is in INR with conversion rate as fixed by the Reserve Bank of India on the date of opening of the price bids, there would be uniformity in evaluation of price bids.
Whether payment is made in INR or USD, it would make no difference since it would depend on the conversion rate as fixed by the Reserve Bank of India.
21. The contention that in view of order dated 29.05.2019 (Annexure-N), the petitioner, a local supplier is to be given preference has no merit since the petitioner has not technically qualified. Even otherwise, it is a global tender, involving highly technical issue. The tendered work requires expertise in the field. Moreover, the Government Order dated 29.05.2019 (Annexure-N) would not confer any right on the petitioner and on the other hand it is a policy decision to encourage "Make In India" and promote manufacturing and production of goods and services in India with a view to enhancing income and employment.
34
22. In NG PROJECTS LIMITED (supra), the Hon'ble Supreme Court has made it clear that the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept a bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and those limitations should be kept in view. The Courts should be even more reluctant in interfering with the contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues.
23. For the reasons recorded above and in the facts and circumstances of the present technical issue involved in the tender, neither clause 3.14(6) nor clause 3.13 of the Tender Notification is arbitrary nor unreasonable.
24. The writ petition is also liable to be dismissed on the ground of non-joinder of necessary parties. One of the prayers of the petitioner is to quash the proceedings dated 35 06.01.2020 (Annexure-A) of the Technical Evaluation Committee, Geological Survey of India. Under Annexure-A/Minutes of the Technical Evaluation Committee, the Committee assessed the technical bids of 3 participants including the petitioner. In the technical evaluation, the other two participants i.e., M/s.MPX Geophysics Ltd., Consortium of M/s.MPX International Corporations and M/s.Saarathi Airways Private Limited; consortium of M/s.Sander Geophysics Limited, consortium M/s.Sander Geophysics Limited, Canada and M/s.Pan India Limited were declared technically qualified, whereas the petitioner failed to technically qualify. If the prayer of the petitioner is allowed and proceedings dated 06.01.2020 are quashed, the consortium which is technically qualified would be affected. The two consortiums stated above acquired right to open their financial bids having qualified technically under the proceedings at Annexure-A. It is settled position of law that any order that would be passed by a Court would 36 affect a person, such person shall be heard before passing such order. Even though the respondents had filed statement of objections more than a year back pointing out non-making of necessary parties, the petitioner has failed to take appropriate steps to implead those two consortium who are technically held to be qualified under Annexure-A proceedings. The consortiums which technically qualified under Annexure-A was necessary party to the present writ petition. In the absence of persons likely to be affected by the relief prayed for, the writ petition is liable to be dismissed.
For the reasons recorded above, the writ petition stands dismissed.
Sd/-
JUDGE mpk/-*CT:bms