Gauhati High Court
Page No.# 1/24 vs Oil India Ltd. And 2 Ors on 18 September, 2025
Page No.# 1/24
GAHC010187572022
2025:GAU-AS:13398
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6068/2022
RIMPUMONI BORDOLOI
S/O SRI PRABIN CHANDRA BORDOLOI, BAM HUKUTA, NEAR GIRLS
COLLEGE, P.O.-DULIAJAN, DIST-DIBRUGARH, ASSAM, PIN-786602
VERSUS
OIL INDIA LTD. AND 2 ORS.
REPRESENTED BY RESIDENT CHIEF EXECUTIVE, DULIAJAN, DIST-
DIBRUGARH, PIN-786602
2:THE GENERAL MANAGER-CONTRACT
CONTRACT DEPARTMENT
OIL
DULIAJAN
DIST-DIBRUGARH
PIN-786602
3:SATENDRA KUMAR SINGH
S/O LATE ISWAR SINGH
DAILY BAZAR
NEAR SANGELI MARKET
STATION ROAD
DULIAJAN-78567
Advocate for the Petitioner : MR. M DUTTA, MR. S R GOGOI
Advocate for the Respondent : SC, OIL, MR. H R DAS,MR S BORA,MR H K SARMA,MR B D
DAS
BEFORE
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HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : 18-09-2025 Heard Mr. S.R. Gogoi, learned counsel for the petitioner. Also heard Mr. A. Sarma, learned counsel and Mr. K. Kalita, learned counsel appearing for the OIL, i.e. respondent Nos. 1 & 2 and Mr. H.K. Sarma, learned counsel appearing for the respondent No. 3.
2. As agreed to by the learned counsel for the parties, the present writ petitioner was taken up for final consideration and is being disposed of by way of this order.
3. The petitioner in the present proceeding has presented a challenge to a corrigendum being corrigendum No. 1, dated 10-12-2021 by which the eligibility criteria as set out in the Invitation to Bid (ITB) No. CDT8813P22 came to be modified. The petitioner has also presented a challenge to the award of contract to the respondent No. 3 and the consequential steps taken in pursuance thereof.
4. The facts in brief, requisite for adjudication of the issue arising in the present proceeding, is noticed as under.
The OIL authorities had issued and Invitation to Bid (ITB) dated 23-11-2021, bearing No. CDT8813P22 inviting bids for hiring 34 brand new 42 to 48 seater fully built Diesel Buses on "One Bidder Two Buses" basis at the OIL offered rates. In the tender so issued, in Part-II thereof, under Clause-2.0 "Bid Evaluation Criteria" it was mandated that the bidder is to have experience of similar work against one contract of minimum Rs. 39.45 Lakhs in any of the organisation set out therein, during the previous 07 (seven) years to be reckoned from the original bid closing date, i.e. within the period 15-12-2014 Page No.# 3/24 to 14-12-2021. The word "similar work" as finding mention in Clause 2.1.1 was defined therein to mean providing Transport Services involving Heavy Passenger Vehicles/ Buses/ Heavy Vehicles/ Logistic Equipment or any other Transport Services". The petitioner being eligible had submitted his bids in pursuance to the said ITB on 04-12-2001.
After submission of the bid of the petitioner, the OIL authorities proceeded to issue a corrigendum being Corrigendum No. 1, dated 10-12-2021, modifying the definition of "Similar Work" as set out in the original tender under the notes to Clause 2.1.1. The amended definition now coming into being, had added the following words to the definition of "similar work" as existing in the tender, "any other transport business services engaging heavy vehicles". With the said amendment being made in the definition to the term "similar work", the respondent authorities extended the time for submission of bids till 21-12-2021. Thereafter, for the reasons assigned in the corrigendums issued, the bid closing date was further extended by way of issuing corrigendum Nos. 2 and 3, to 04- 01-2022 and 11-01-2022 respectively. On the closing of the date for submission of the bids, the bids were opened on 11-01-2022 and it was found that 301 bidders had submitted their respective bids in the matter.
The bids being scrutinised by the Technical Scrutiny Committee, 34 bidders came to be shortlisted. The shortlisted bidders at Sl. Nos. 1 to 17 came to be included in a list know as "priority list" and bidders at Sl. Nos. 18 to 34 came to be so incorporated in a "waiting list". The petitioner's bid on being evaluated having been found to be suitable, he was placed at Sl. 10 of the "priority list".
In the case in hand, the petitioner having submitted his bid before issuance of the Page No.# 4/24 corrigendum dated 10-12-2021, the respondent authorities proceeded vide email dated 04-03-2022, to require him to submit documents envisaging required satisfaction of the experience of having performed "transport services engaging heavy vehicles" as per the criteria now coming into being, after issuance of the corrigendum No. 1, dated 10-12- 2021. The said documents envisaging the satisfaction of the experience criteria by the petitioner was to be so furnished on or before 08-03-2022. The petitioner in response to the said requirement made of him vide communication dated 08-03-2022, submitted documents to envisage the satisfaction of experience criteria of having being engaged in transport services involving heavy vehicles. The petitioner in this connection, had relied upon the attached bowser/ tanker, bearing registration No. AS-01AC-1404, belonging to him and involved in the execution of the contract awarded to one M/s Lexicon Engineering, by the OIL authorities. On receipt of the said particulars from the petitioner, the matter was considered by the Technical Scrutiny Committee. On such consideration being made by the Technical Scrutiny Committee, although it was brought on record that the petitioner had the experience of executing similar work, it was, however, found that the petitioner did not satisfy the requirement of having the experience of discharging a similar nature of work to the tune of Rs. 39.45 Lakhs, in terms of the provision 2.1.1. The petitioner was found to have received during the period 15-12-2014 to 13-06-2016, an amount of Rs. 20,39,441/- (Rupees Twenty Lakhs Thirty Nine Thousand Four Hundred Forty One) only, against running of the said tanker on attachment with M/s Lexicon Engineering. Basing on the said particulars the Technical Scrutiny Committee, proceeded to hold the bid of the petitioner to be non-responsive. The petitioner who was placed at Page No.# 5/24 Sl. No. 10 of the priority list, on his bid being found to be non-responsive, was removed from the said position and the respondent No. 3, who was placed in the waiting list was elevated to the priority list. The OIL authorities, thereafter, on 28-04-2022 issued Letter of Award (LoA) to the respondent No. 3, herein, on finding that he fulfils all the requisite criteria of the tender. It is further contended that the award of tender to the respondent No. 3 was approved by the Competent Authority.
5. The petitioner being aggrieved, approached this Court on 13-09-2022 by instituting the present writ petition, inter-alia, with a prayer for restraining the respondent authorities from awarding the contract in question to the respondent No. 3, herein. The petitioner also prayed for a direction upon the respondent authorities for award of the contract involved to him in terms of his short-listing.
6. During the pendency of the present writ petition, the petitioner, herein, instituted an Interlocutory Application, being I.A.(C) No. 3779/2023, inter-alia, praying for amendment of the writ petition, more particularly, its prayer portion. By affecting the said amendment, the petitioner sought to challenge the Corrigendum No. 1 dated 10-12-2021, as well as the LoA dated 28-04-2022, issued by the respondent authority to the respondent No. 3, herein, along with the agreement executed in the matter between the respondent authorities and the respondent No. 3 on 09-07-2022. This Court vide order dated 01-03-2024, on considering the matter was placed to allow the Interlocutory Application, being I.A.(C) No. 3779/2023, accepting the prayer of the petitioner, herein, for amendment of the writ petition. Accordingly, the writ petition was amended and on the pleadings being completed, the matter was taken up for final consideration.
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7. Mr. S.R. Gogoi, learned counsel for the petitioner by drawing the attention of this Court to the un-amended NIT dated 23-11-2021 has submitted that the petitioner within the timeframe, as prescribed, therein, for submission of bids had submitted his bids in the matter and the said bid complied with eligibility criteria as set out in the original NIT. Mr. Gogoi has submitted that after the submission of the bid by the petitioner, herein, on 10- 12-2021, the respondent authorities had proceeded to issue the corrigendum No. 1 dated 10-12-2021, amending the definition of "similar work" as existing in the provision of notes to Clause 2.1.1. Mr. Gogoi has submitted that the petitioner, herein, having submitted his bid prior to the last date of submission of the bids in terms of the original NIT, his bid was taken up for consideration and was found to be responsive in the matter. It is submitted by Mr. Gogoi that the respondent authorities on finding the bid of the respondent to be responsive, had included his name at Sl. No. 10 of the "priority list" so published in the matter. Mr. Gogoi submits that the petitioner, accordingly, was eligible for being awarded the contract in question.
8. It is submitted by the petitioner that after preparation of the priority list, the respondent authorities had proceeded to issue e-mail to the petitioner on 04-03-2022 and therein required the petitioner to submit documents envisaging, possession by him of the requisite experience of executing transport services engaging heavy vehicles, as per Corrigendum No. 1, dated 10-12-2021. It is submitted by the petitioner that in response to the said requirement made by him, the petitioner vide, e-mail dated 08-03-2024 had submitted requisite particulars. The petitioner for establishing his eligibility of having executing similar nature of work of transport services engaging heavy vehicles had Page No.# 7/24 furnished the particulars of engagement of 12KL capacity bowsers (Tankers) for transportation of crude oil from various OIL fields located in Assam by attaching the same with one M/s Lexicon Engineering, which firm was awarded the said contract. Mr. Gogoi has submitted that the said particulars furnished by the petitioners would bring to the forefront that the petitioner had experience of executing similar works of transportation service by engaging heavy vehicles. Mr. Gogoi submits that inspite of the fact that he had submitted the requisite particulars and the same also having envisaged his eligibility in terms of the amended criteria as coming into being with the issuance of the Corrigendum No. 1, dated 10-01-2021, the respondent authorities proceeded to hold that his bid to be non-responsive and rejected the same.
9. In view of the above premises, Mr. Gogoi submits that in terms of the original tender, the petitioner having fulfilled the eligibility criteria and also being placed in priority list at Sl. No. 10, the petitioner having submitted his bid before issuance of Corrigendum No. 1, dated 10-01-2021, his bid has to be held to be responsive and contract in question is required to be allotted to him. Mr. Gogoi, submits that even with regard to the amended criteria coming into being with regard to similar work in terms of the said Corrigendum No. 1, the petitioner having satisfied the said criteria, there exists no reason for denying to the petitioner the award of contract in question. Mr. Gogoi has submitted that the respondent authorities in order to favour respondent No. 3, herein, had held the bid of the petitioner to be non-responsive and proceeded to award the contract, in question, to the respondent No. 3, by including him in the priority list, by excluding the petitioner there-from. Accordingly, he submits that the award of contract to the respondent No. 3 Page No.# 8/24 would mandate an interference from this Court with further direction for grant to the petitioner, herein, the contract in question.
10. Per contra, Mr. A. Sarma, along with Mr. K. Kalita, learned counsel for the respondent OIL have submitted that definition of similar work as set out in the original NIT, was subsequently amended by the OIL authorities vide issuance of the corrigendum No. 1, dated 10-12-2021. He submits that the power to modify the bidding documents is provided for in the NIT itself, under the provision of Clause 4.1 of the tender. He submits that Clause 4.1 of the Instructions to Bidders (ITB) of the tender, empowers the OIL authority to modify the bidding document on its own initiative or in response to a clarification requested by a prospective bidder, at any time prior to the deadline of submission of bid. Accordingly, he submits invoking the provisions of Clause 4.1 of the Instruction to Bidders, as incorporated in the NIT, the definition of similar work as finding place in Clause 2.1.1 was amended vide issuance of Corrigendum No. 1, dated 10-12- 2021. He submits that with the issuance of corrigendum dated 10-12-2021 the date for submission of bids was also extended.
11. Mr. Sarma by referring to Clause 4.2 of the Instruction to Bidders as incorporated in the NIT, submits that prospective bidders were obligated to check from time to time the E-Tender portal "Technical RFx" under the tab "Amendments to Tender Documents" for any amendments to the bid documents before submission of their bids. He submits that the provisions of Clause 4.2 also mandated that no separate intimation shall be sent to the bidders, herein.
12. Mr. Sarma has submitted that the petitioner, herein, having submitted his bid Page No.# 9/24 before the date of issuance of the corrigendum dated 10-12-2021, the petitioner, herein, was asked to submit clarifications along with credentials of having experience of transport services engaging heavy vehicles as per revised BEC/ BRC vide e-mail dated 04-03-2022. Mr. Sarma has submitted that the revised criteria as coming into being mandates the intending bidder to have the experience of at least carrying out one similar work of minimum value of Rs. 39.45 Lakhs during the period w.e.f. 15-12-2014 to 14-12-2021 under Clause 2.1.1. of Part 2 of the bid documents. He submits that the petitioner having submitted his credential of having experience of executing work of transport services engaging heavy vehicles, in terms of the provisions now incorporated in the tender vide corrigendum No. 1, dated 10-12-2021, the credential as submitted by the petitioner, herein, were examined by the Technical Scrutiny Committee. It is submitted that although the petitioner had the experience for similar work, however, he did not fulfil the further requirement of executing similar work for a contract value of Rs. 39.45 Lakhs. The work as projected by the petitioner for providing the attached bowser/ tanker, was for a value of Rs. 20,39,441.90 (Rupees Twenty Lakhs Thirty Nine Thousand Four Hundred Forty One and Ninety Paise) only, for the period from 15-12-2014 to 13-06-2016 as per the records available with the company. The value as obtained by the petitioner being lower than the requirement of Rs. 39.45 Lakhs, as set out in the tender, the bid of the petitioner was found to be not technically complaint and accordingly, his bid was declared to be non- responsive.
13. Mr. Sarma has submitted that the bid of the petitioner on being declared non- responsive, lead to his exclusion from the priority list and subsequently the respondent Page No.# 10/24 No. 3 was included in the priority list and the contract in question was awarded to him.
14. In the above premises, Mr. Sarma has submitted that the respondent authorities have not committed any illegality in the matter and the actions as taken were taken strictly in terms of the stipulations made in the NIT in question. Accordingly, he submits that no interference with the award of contract with the respondent No. 3 would be called for and further that the Corrigendum No. 1, dated 10-12-2021, having been issued strictly in compliance with the provisions of the NIT, the same would also not mandate any interference from this Court.
15. I have heard the learned counsel for the parties and also perused the materials available on record.
16. The materials brought on record as well as the submission made on behalf of the contesting parties brings to the forefront that the issue revolves around the application of the provisions of Clause 2.1.1 of the tender conditions. 2.0 of the tender condition pertaining to the Bid Evaluation Criteria (BEC), it is extracted here-in-below:
2.0 BID EVALUATION CRITERIA:
2.1 TECHNICAL CRITERIA 2.1.1 The bidder shall have experience of SIMILAR work against one contract (along with Emergent/Extension Contract, if any, using the same vehicle as deployed against the original Contract without any time gap) of minimum Rs. 39.45 lakhs (Rupees Thirty Nine Lakhs Forty Five Thousand Only) in Public Sector Undertaking (PSU)/ Central Government Organization/ State Government Organization/Corporations in previous 07 (seven) years to be reckoned from the original bid closing date i.e. within the period 15/12/2014/ to 14/12/2021 (both day inclusive).
Documentary evidence must be submitted along with the Bid. The documentary evidence must be in the form of Job Completion Certificate / Gross Payment Certificate/Work Execution Certificate etc. as applicable showing:
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(a) Gross value of job done; and
(b) Nature of job done; and
(c) Time period covering as per the NIT.
Only Letter of Intent (LOI) / Letter of Award (LOA) /Work Order(s) and/or Services Entry sheet. (SES) are not acceptable as evidence. However, if Letter of Intent (LOI)/Letter of Award (LOA) / Work Order(s) and/or Services Entry sheet (SES) are issued from OIL, then the same will be considered as evidence subject to successful verification with OIL's own records of execution. Notes to clause 2.1.1:
(i) "Similar Work" means providing Transport Services involving Heavy Passenger Vehicles/Buses/ Icavy Vehicles/ Logistic Equipment or any other Transport Services.
(ii) The bidder must have experience of providing similar services to Public Sector Undertaking (PSU) / Central Government Organization State Government Organization/Government Corporations for any length of time during the last 07(seven) years ending on 14.12.2021 (Original Bid Closing Date) i.e. for any length of time within the period 15/12/2014/ to 14/12/2021 (both days inclusive). During this period of 07(seven) years, bidder must have successfully carried out one similar work of minimum Rs. 39.45 lakhs. Accordingly, the Starting Date and/or the Job Completion Date of the work need not necessarily fall within the seven years period of 15/12/2014/ to 14/12/2021; but the value of work done must be of requisite amount within the period.
17. A perusal of the Clause 2.1.1 would go to reveal that the intending bidder was required to have an experience of "SIMILAR WORK", against one contract for a minimum value of Rs. 39.45 Lakhs (Rupees Thirty Six Lakhs Thirty Nine Thousand only) in any Public Sector Undertaking (PSU)/ Central Government Organisation/ State Government Organisation/ Government Corporations during the previous 07 (seven) years, to be reckoned from the original bid closing date i.e. within the period 15-12-2014 to 15-12- 2021 (both days inclusive). The term "similar work" was defined under notes to Clause 2.1.1. to mean providing transport services involving Light Passenger Vehicles/ Buses/ Heavy Vehicles/ Logistic Equipment or any other Transport Services. The petitioner, Page No.# 12/24 herein, admittedly had submitted his bids in pursuance to the said NIT on 01-12-2021, complete in all respect. After submission of the bids of the petitioner, herein, the OIL authorities proceeded to issue Corrigendum No. 1 dated 10-12-2021, modifying the definition of term similar work as obtaining in the NIT under Clause 2.1.1.
18. The modified definition of the term "similar work" as coming into being in pursuance to the issuance of the Corrigendum No. 1 being relevant, is extracted here-in- below:
"Similar Work" means providing Transport Services involving Heavy Passenger Vehicles/ Buses/ Heavy Vehicles/ Logistic Equipment of any other Transport Services engaging Heavy Vehicles"
19. On a comparison of the definition of the term similar work as set out in the un- amended NIT under Clause 2.1.1 and the amended provision of the definition of the terms similar work, as coming into being in pursuance to the issuance of Corrigendum No. 1, dated 10-12-2021, this Court finds that the original definition of the term "similar work"
was amended with the addition of the following words " or any other Transport Services engaging Heavy Vehicles".
20. The petitioner having submitted his bids in the matter, it is found that the same was taken up for consideration. Accordingly, after draw of lots held for selecting the contractors in the matter, a priority list was prepared and therein the name of the petitioner was included at Sl. No. 10. After preparation of the said list, the respondent authorities proceeded to issue an e-mail to the petitioner, herein, on 04-03-2022, requiring him to submit his credentials envisaging the execution of the work of transport Page No.# 13/24 services engaging heavy vehicles as per the revised definition of the term "similar work"
coming into being in pursuance to issuance of the Corrigendum No. 1, dated 10-12-2021.
The petitioner in response to the said requirement made of it had on 08-03-2022 submitted his credentials in the matter. The petitioner in support of his credentials had relied upon the service of providing a Bowser (Tanker) as attached tanker against contract No. 6107382 which was awarded to M/s Lexicon Engineering, Duliajan.
21. The credentials as submitted by the petitioner in the matter was considered by the Technical Scrutiny Committee and on such scrutiny, it was found that both the petitioners, herein, had requisite experience of executing work of transport services engaging heavy vehicles, as per revised criteria coming into being. However, it was found that the petitioner did not fulfill the requirement of having executing said work for a minimum value of Rs. 39.45 Lakhs during the period from 15-12-2014 to 13-06-2016. The value as received by the petitioner for the work executed by him during the said period was found to be only Rs. 20,39,441/-, and the same being lower than that specified in Clause 2.1.1, the bid of the petitioner came to be declared as non-responsive. The said action resulted in the exclusion of the petitioners, herein, from the priority list and the respondent No. 3 who was placed in the waiting list, having now been included in the priority list, the contract in question was awarded to the respondent No. 3 vide letter of award dated 28- 04-2022. The said letter of award was accepted by the respondent No. 3 and follow up action was also taken by it in the matter.
22. This Court on an examination of the materials coming on record as well as the contentions raised by the parties, finds that the petitioner, herein, was given an Page No.# 14/24 opportunity to establish the fact that he had fulfilled the requirement as set out in Clause 2.1.1, on its amendment in pursuance to the issuance of the Corrigendum No. 1, dated 10-01-2021. The said course of action was adopted by the respondent authority noticing that the petitioner, herein, had submitted in bid in pursuance to the NIT in question, before the original date fixed therein, for submission of bids and before issuance of the Corrigendum dated 10-12-2021. Accordingly, this Court finds that the respondent authorities had provided adequate opportunity to the petitioner, herein, to satisfy the authorities that he met the amended eligibility criteria coming into being after submission of its bid in the matter. Accordingly, the petitioner having availed of the said opportunity and submitted his credentials in the matter, the same on scrutiny having been found to be not satisfied, the requirement as set out in Clause 2.1.1 of the tender conditions, this Court does not find any error with regard to the action on the part of the respondent authorities in declaring the bid of the petitioner, herein, to be non-responsive.
23. Having drawn the said conclusion, this Court would also now consider the challenge made by the petitioner to the issuance of Corrigendum dated 10-12-2021. This Court notices that the said corrigendum No. 1 was issued by the respondent authority on 10-12-2021 and thereby had amended the definition of the term "similar work" as existing in the provision of Clause 2.1.1 of the tender conditions.
24. The NIT had also incorporated, therein, a provision for amendment of the Bidding Documents in Clause 4 (Part-1 Instructions to Bidders). The provision of Clause 4 being relevant is extracted here-in-below:
"4.0 AMENDMENT OF BID DOCUMENTS:
Page No.# 15/24 4.1 At any time prior to the deadline for submission of bids, the Company may, for any reason, whether at its own initiative or in response to a clarification requested by a prospective Bidder/modify the Bidding Documents by the issuance of an Addendum.
4.2 The Addendum will be uploaded in OIL's E-Tender Portal in the "Technical RFx" under the tab "Amendments to Tender Documents". The Company may, at its discretion, extend the deadline for bid submission, if the Bidders are expected to require additional time in which to take the Addendum into account in preparation of their bid or for any other reason Bidders are to check from time to time the E-Tender portal ["Technical RFX under the tab "Amendments to Tender Documents") for any amendments to the bid documents before submission of their bids. No separate intimation shall be sent to the Bidders."
25. A perusal of the provision of Clause 4, more particularly, Clause 4.1, thereof, would go to reveal that the respondent authorities had the liberty to modify the bidding documents, at any time prior to the deadline for submission of bids, for any reason, whether at its own initiative or in response to a clarification requested by a prospective bidder. The said provision having been incorporated in the NIT, empowering the respondent authorities to modify the bidding documents, this Court finds that the power to issue the Corrigendum No. 1, dated 10-12-2021 by the respondent authority in the matter is traceable to the provisions of Clause 4.1 of the Instructions to the Bidders. The provisions of Clause 4.1 being not challenged in the present proceedings by the petitioner, the same applies with full force and accordingly, the challenge made by the petitioner, herein, to the corrigendum No. 1 dated 10-12-2021 would not mandate acceptance by this Court.
26. Having drawn the said conclusions, this Court would now examine the decisions of the Hon'ble Supreme Court holding the field with regard to the power of the writ Court to interfere with the prescriptions in a tender conditions as well as the importance so Page No.# 16/24 required to be given with regard to the interpretation of such tender conditions by the employer.
27. With regard to the power of judicial review of the administrative action; the Hon'ble Supreme Court in the case of Jagdish Mandal Vs. State of Orissa, reported in (2007) 14 SCC 517, had drawn the following conclusions:
"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 project cost manifold. 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 Page No.# 17/24 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 tenderer/contractor or distribution of State largesse of penal consequences on a tenderer/contractor or distribution of State largesse(allotment of sites/shops, grant of licences, dealerships and frances) stand on a different footing as they may require a higher degree of fairness in action."
28. The Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr. , reported in (2016) 16 SCC 818, had drawn the following conclusions:
"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. 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.
12. In Dwarkadas Marfatia and Sons v. Port of Bombay it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa as mentioned in Central Coalfields.
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.
14. We must reiterate the words of caution that this Court has stated right Page No.# 18/24 from the time when Ramana Dayaram Shetty v. International Airport Authority of India was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2 (a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.
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 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."
29. In the case of Galaxy Transport Agencies Vs. New J. K. Roadways, Fleet Owners & Transport Contractors, reported in (2021) 16 SCC 808, a 3-Judge Bench of the Hon'ble Supreme Court had held that the authority that authors the tender document is the best person to understand and appreciate its requirements and thus, its interpretation should not be second guessed by a Court in judicial review proceeding. [Also refer Utkal Supplier (Supra)].
30. The Hon'ble Supreme Court in the case of M/s Agmatel India Pvt. Ltd. Vs. Resoursys Telecom & Ors., reported in (2022) 5 SCC 362, after noticing its earlier decisions in the case of Galaxy Transport Agencies (supra); Bharat Cooking Coal Ltd. & Ors. Vs. AMR Dev Prabha & Ors. reported in (2020) 16 SCC 759; Silppi Constructions Contractors(Supra); had drawn the following conclusions:
"24. The scope of judicial review in contractual matters, and particularly in Page No.# 19/24 relation to the process of interpretation of tender document, has been the subject- matter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the three-Judge Bench decision of this Court in Galaxy Transport Agencies wherein, among others, the said decision in Afcons Infrastructure has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment.
25. This Court referred to various decisions on the subject and stated the legal principles as follows: (Galaxy Transport Agencies case, SCC paras 14-20) "14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., this Court held: (SCC p. 825, para 15) "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 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 the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, under the heading "Deference to authority's interpretation", this Court stated: (SCC p. 776, paras 50-52)
50. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent 1 seeks to only enforce terms of NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.
51. In the present facts, it is clear that BCCL and C1-India have laid recourse to clauses of NIT, whether it be to justify condonation of delay of Respondent 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them.
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52. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought, not to have been grounds for the High Court to come to a finding that the appellant committed illegality.'
16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, this Court held as follows: (SCC pp. 501-02, para 20)
20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent Arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.
17. In accordance with these judgments and noting that the perpetration of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word both" appearing in Condition No. 31 of the NIT For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be negligible, is set aside.
18. Insofar as Condition No. 27 of the NIT prescribing work experience of at least 5 years of not less than the value of Rs 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. ......................
26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical Page No.# 21/24 evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given."
31. The Hon'ble Supreme Court in the case of N.G. Projects(Supra), after noticing its earlier decisions; had drawn the following conclusions:
"17. Therefore, the position of law with regard to the interpretation of terms of the contract is that the question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. Applying the aforesaid position of law to the present case, it has been the contention of Respondent 1 that the format for bank guarantee was not followed strictly by the State and that the relaxation given was not uniform, in that Respondent 1 was singled out. The said contention has found favour with the courts below.
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 mala fide. Therefore, on the 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."
32. The ratio of the decisions of the Hon'ble Supreme Court as noticed in the above- noted cases, is to the effect that the owner or the employer of a project having authored the tender document is the best person to understand and appreciate its requirement and interpret its documents. A constitutional Court is to defer to this understanding and appreciation of the tender documents unless there is malafide or perversity in the Page No.# 22/24 understanding or appreciation or in the application of the terms of the tender conditions. Even if the interpretation of a tender document as projected by the employer, is not acceptable to a constitutional Court, that, by itself; would not be a reason for interfering with the interpretation so projected by the employer. It also further stipulates that if two interpretations are possible then the interpretation of the employer, must be accepted. The said decisions lay down that the interference of a Court would be only to prevent arbitrariness, irrationality, bias, mala fide, or, perversity.
33. Applying the ratio of the decisions of the Hon'ble Supreme Court to the facts of the present case, this Court finds that the decision of the respondent authorities to hold the bid of the petitioner to be un-responsive is on the ground that the petitioner, while having the experience of having executed "similar work" did not fulfil the condition of having executed similar work to the tune of Rs. 39.45 Lakhs during the period w.e.f. 15-12-2014 to 14-12-2021 in terms of the stipulation made in Clause 2.1.1 of the Bid Evaluation Criteria, as incorporated in the NIT under Part-2 Section. The respondent authorities being the author of the NIT, its interpretation of the conditions set out therein has to be given primacy by this Court and cannot be second guessed by this Court in judicial review.
34. The provisions of Clause 2.1.1 of the Bid Evaluation Criteria having mandated the intending bidder to have the experience of "Similar Work", with further stipulation that the same must be against one contract for a minimum value of Rs. 39.45 Lakhs reckonable for the period 15-12-2014 to 14-12-2021, the respondent OIL for determining the eligibility of a intending bidder having interpreted the conditions set out in Clause 2.1.1 of Page No.# 23/24 Bid Evaluation Criteria to be satisfied in toto, the said interpretation would not be permissible to be second guessed by this Court. It is also noticed that the petitioner has not challenged the provisions of Clause 2.1.1 of the Bid Evaluation Criteria as interpreted by the OIL authorities. Further, the petitioner has not brought on record any material to demonstrate that the interpretation of the provisions of Clause 2.1.1 as made by the OIL authorities to suffer from perversity.
35. Accordingly, the declaration of the bid of the petitioner to be non-responsive, being on account of the petitioner not fulfilling the provisions of as set out for Bid Evaluation under the provisions of Clause 2.1.1. of the Bid Evaluation Criteria as set out in the NIT, in the considered view of this Court the same would not mandate any interference.
36. The power of the respondents to issue the Corrigendum No. 1, dated 10-12-2021 being traceable to Clause 4.1 of the Instructions to Bidders as set out in the NIT and the Corrigendum No. 1, having been issued prior to the original date fixed as the last date for submission of bids, this Court is of the considered view that the same would not be permissible to be assailed by the petitioner, herein, that to in absence of any allegation of malafide being levelled in the matter by the petitioner.
37. In view of the above conclusions. This Court is of the considered view that the challenge presented by the petitioner in the present writ petition, would not be maintainable. Accordingly, the award of contract to the respondent No. 3 would not call for any interference.
38. In view of the above, the present writ petition is held to be devoid of any merit and Page No.# 24/24 the same is, accordingly, dismissed.
However, there would be no order as to cost.
JUDGE Comparing Assistant