Gauhati High Court
Elite Computers And Communications ... vs The State Of Assam & 11 Ors on 11 July, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: WP(C) 2500/2017
Elite Computers and Communications Pvt. Ltd. ...... Petitioner
-Versus-
The State of Assam and others ..... Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Petitioner : Mr. KN Choudhury
Sr. Advocate
Mr. PD Nair
Advocate
For the Respondents : Mr. D Saikia
Sr. Addl. Advocate General, Assam
Mr. B Gogoi
Advocate
Date of Hearing : 11.07.2017
Date of delivery of
Judgment and Order : 11.07.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. KN Choudhury, learned senior counsel assisted by Mr. PD Nair, learned counsel appearing on behalf of the petitioner. Also heard Mr. D Saikia, the learned Senior Additional Advocate General, Government of Assam assisted by Mr. B Gogoi, the learned counsel and Mr. RK Agarwal, learned counsel for the respondent No. 8.
2. The respondent No. 4, Commissioner of Taxes, Assam had issued an E- Tender Notice No. CP/COMP-56/2016/41 dated 28.10.2016 for the work of 'The supply of computer, network hardware and its peripherals, including the work of Page 1 of 20 WP(C) 2500/2017 power of supply and network cabling at various offices under the Commissioner of Taxes, Assam'. The invitation for Bid No. NCB/FEB (WB-PMU) 10/2015/136 dated 01.11.2016 was issued by the respondent No. 6, the Project Director - ASPIRe Project in respect of the National Competitive Bidding for the said work with Bid Reference/ Tender No. ASPIRe/NCB/FEB (WB-PMU) 10/2015/136/2016- 2017. After changes made in the initial date for submission and opening of Bids, ultimately the last date and time of submission of online Bids as well as hard copy thereof was fixed on 1200 hrs. of 30.12.2016 and the date and time of opening of the bids was fixed at 1400 hrs. of 30.12.2016.
3. The tender document revealed a financial eligibility criterion as incorporated in Section III (Evaluation And Qualification Criteria) thereof as follows:-
"the Bidder must have minimum average annual turnover of INR 15 Crores in each of the last 3 financial years."
4. The present petitioner was authorised to bid for supplying various products by manufacturers of some IT, networking and other products required for supply vide the instant tender and as such the present petitioner was authorised by the said manufacturers to quote rates independently, negotiate and sign the contracts for supplying their respective products and/or services to the Commissioner of Taxes, Assam.
5. Upon issuance of the said tender, finding sub-clause B of Clause 2 - Financial Eligibility under the General Conditions of the Instructions to Bidders ('ITB' in short) to be illogical, the petitioner made a request to the respondent No. 4 for amendment of the said tender clause along with some other Page 2 of 20 WP(C) 2500/2017 clarifications vide letter No. ECC/2K16-17/Prebid-519 dated 09.11.2016. By the said letter the petitioner had, inter alia, sought for clarifications, requesting that Clause 2(B) of the General Conditions of ITB i.e. "The Bidder must have minimum average annual turnover of INR 15 Crores in each of the last 3 financial years. The revenues must be accrued from sale of similar items as per items", be changed to "average annual turnover of 15 Crores from the last three financial years for sale of similar items".
6. The representatives of the petitioner company and others were called for a Pre-Bid Meeting on 11.11.2016 in the office of the respondent No. 4. In the said meeting it was informed that no change was required to be made to the existing Clause 2(B) of the General Conditions of ITB and to that effect, minutes of the said meeting was also prepared which forms the part of the petition as Annexure-7.
7. The technical bids in response to the said tender were opened on 30.12.2016 at 1400 hrs in the office of the respondent No. 4 in presence of the representative of the petitioner company. After opening of the technical bids on 30.12.2016, the official respondents prepared the minutes of Bid Opening Summary and as per the said minutes the petitioner was found to be a responsive bidder including that of financial eligibility of minimum average annual turnover.
8. After opening of the financial bids on 01.02.2017, the representatives of the petitioner company were called for meeting on 27.02.2017 by the respondent No. 7, Inspector of Taxes and the said representatives attended the said meeting on 27.02.2017 wherein the petitioner was asked to confirm furnishing of Page 3 of 20 WP(C) 2500/2017 additional Performance Bank Guarantee for being awarded the work. The petitioner agreed to the said proposal and a letter dated 02.03.2017 was sent conveying that the petitioner would additionally provide 5% Performance Bank Guarantee for the annual maintenance contract for 5 years over and above the 10% Performance Bank Guarantee already assured by it.
9. The respondent No. 7, Inspector of Taxes, Assam sent the impugned email dated 19.04.2017 informing the petitioner company that as the petitioner company had mentioned in its bid that its annual turnover of the years 2012-13 and 2013-14 were Rupees 8 Crores and Rupees 12 Crores respectively, it did not fulfil the criteria of Minimum Average Annual turnover of Rupees 15 Crores in each of the last 3 financial years. In the said impugned email dated 19.04.2017 it was also specified therein that - "RPF criteria is 'The Bidder must have minimum average annual turnover of INR 15 crores in each of the last 3 financial years. World Bank interpretation is that the annual turnover should be at least INR 15 crore in each year."
10. The petitioner, being aggrieved by the said email dated 19.04.2017 (Annexure-14), sent a representation dated 20.04.2017 expressing its grievances and requesting to be awarded the work. However, the same was not responded by the respondent authorities. The petitioner, being aggrieved, has filed this writ petition wherein it is mentioned that Letter of Intent (LoI) has been issued to the private respondent No. 8 for the tender work, however, the agreement for the said work was yet to be signed and no work order has been issued to the respondent No. 8. Later on, the petitioner by filing an additional affidavit brought Page 4 of 20 WP(C) 2500/2017 on record the Letter of Acceptance (LoA) issued by the respondent No. 3 to the respondent No. 8 dated 10.04.2017.
11. It is submitted by the petitioner that once having accepted that the petitioner satisfied the Financial Eligibility Criteria and recording the same in the minutes of the Bid Opening Summary and subsequent acts on the part of the respondent No. 4 by opening the financial bid of the petitioner and calling it for negotiations, such action tantamount to changing the rules of the game after it had been played. The same is arbitrary, whimsical, capricious, unreasonable and as such the impugned email dated 19.04.2017 is liable to be set aside and quashed. It is also prayed that a writ of mandamus and/or any other direction be issued commanding the respondent authorities not to issue any order and/or allow the private respondent No. 8 to carry out the work tender vide the bid reference stated hereinabove.
12. Upon motion, this court vide order dated 05.05.2017 by way of an interim order directed the respondent authorities to maintain status quo as on 05.05.2017 with respect to the Letter of Acceptance (LoA) dated 10.04.2017 (Annuxure-19).
13. The respondent No. 4, in response to the writ petition, filed an affidavit- in-opposition. It has been brought on record that the online bid opening date was 30.12.2016. There were in total 6 (six) bidders including the present petitioner and the respondent No. 8. A pre-bid meeting was held on 10.11.2016 in which different queries were raised by the bidders. The responses to the pre- bid meeting were published online on 01.12.2016 in the website. One of the queries raised by the petitioner was related to the average annual turnover in Page 5 of 20 WP(C) 2500/2017 each year mentioned in Clause 2(B) of Financial Eligibility of the bid document. The petitioner requested to remove the word 'each year' and consider only the 'the average annual turnover for 3 years'. It was clearly mentioned in the pre-bid minutes informing that no changes would be carried out.
14. By the said affidavit-in-opposition it was further brought on record that the respondent No. 4 informed that both the technical and financial bids submitted by the bidders would be scrutinised further and the final report in the form of Bid Evaluation report would be sent to the World Bank for their approval as the financial involvement in the project was funded by the World Bank. Thereafter, on scrutiny of both the technical and financial bids, there remained 3 (three) bidders including the petitioner and the respondent No. 8. In the financial bid of the petitioner, the price quoted under 'operation and maintenance (AMC/ Warranty) caused for 5 years and preventive maintenance caused for 5 years' were found to be very low. The petitioner being L1 bidder till that stage, the respondent No. 4 held a meeting with the petitioner and in order to safeguard the purpose of the project, the respondent No. 4 decided to enhance the Performance Bank Guarantee from the existing 10% to 15% which it agreed to comply. It is also brought on record that after preparation of the Bid Evaluation Report, the same was sent to World Bank for review and issuance of NOC. The World Bank while going through the report found out the mistake committed by the Evaluation Committee related to Clause 2(B) under Financial Eligibility i.e. "the Bidder must have minimum average annual turnover of INR 15 Crores in each of the last 3 financial years." The World Bank communicated the same vide email dated 30.03.2017 highlighting that the average annual turnover should not Page 6 of 20 WP(C) 2500/2017 be less than INR 15 Crore in each of the 3 years. On the basis of the necessary corrections carried out at the instruction of the World Bank, the respondent No. 8 became the L1 bidder and a revised Bid Evaluation Report was sent to the World Bank for its review. The World Bank issued NOC vide email dated 05.04.2017 stating that the respondent No. 3 can award the contract to the respondent No. 8 subject to submission of valid additional performance bank guarantee by the bidder. For the said reasons, the bid of the petitioner could not be accepted for not fulfilling the financial eligibility criteria prescribed under Clause 2(B) of the General Conditions of the tender. It is also submitted that the Tender Evaluation Committee inadvertently considered the bid of the petitioner as technically responsive which came to the notice of the respondent authorities only when the World Bank pointed out the same.
15. The respondent No. 8 through its affidavit-in-opposition submits that the terms and conditions of Clause 2(B) under the Financial Eligibility Criteria are without any ambiguity. The petitioner admittedly participated in the pre-bid discussion and sought for clarification knowing consequences of terms and conditions in the bid document and now cannot question the legality of the clause on the ground of unreasonableness, arbitrariness and illegality. The petitioner cannot approbate and reprobate. It is submitted further that the respondent company had received a mail from the respondent authorities with a request to provide additional bank guarantee of 5% over and above the existing Performance Bank Guarantee of 10% of the contract value. The respondent No. 8 confirmed the said request and on receipt of the said confirmation, the respondent authority had issued Letter of Acceptance (LoA) dated 10.04.2017 Page 7 of 20 WP(C) 2500/2017 and notification of award of contract at quoted amount of INR 18,22,88,839.86 (Rupees eighteen crore twenty two lac eighty eight thousand eight hundred thirty nine and eighty six paise) exclusive of taxes. By the said notification of award, the respondent No. 8 was asked to furnish performance security of 15% which was accordingly complied vide Performance Bank Guarantee dated 26.04.2017 for an amount of Rs. 2,73,40,000/-. The respondent authority thereafter had sent the verification letter to the Bank for the verification of the same on 03.05.2017. The same has been confirmed by Mizuho Bank Limited vide their letter dated 04.05.2017. Accordingly, the respondent No. 8 prays for dismissal of the writ petition.
16. Mr. KN Choudhury, the learned senior counsel, submits that the petitioner sought for removal of the term "each year turnover of Rs. 15 Crore" from the Financial Eligibility Criteria which was not changed as per the minutes of the pre- bid meeting held on 11.11.2016. From amongst the technically responsive bidders, so far the financial bids are concerned, the present petitioner quoted the bid amount of Rs. 18,86,48,581/- and on the other hand, the respondent No. 8 quoted Rs. 19,94,44,181/-. There is a difference of Rs. 1,07,95,600/- between the two rates quoted by the petitioner and respondent No. 8. It is also submitted that the brand of most of the items supposed to be supplied are same so far the petitioner and the respondent No. 8 are concerned. The respondent authorities knowing fully well about the said difference in the bid amount, are trying to allot the work order to the respondent No. 8 by giving a wrong interpretation of the criteria of the financial bid with an oblique intention to oust the petitioner. Page 8 of 20 WP(C) 2500/2017
17. Further stressing the word 'average', Mr. Choudhury refers to the meaning of the said word as per Black's Law Dictionary. He submits that the word 'average' means a single value that represents a broad sample of subjects. It is also submitted that if the total turnover of the petitioner company is taken into consideration for the period of 2012-13, 2013-14 and 2014-15, it comes to Rs. 48,10,59,278.31. From the said total turnover, the annual average turnover for the last 3 financial years of the petitioner company comes to Rs. 16,03,53,092.77. Accordingly, the petitioner company satisfies the financial eligibility criteria of its minimum average annual turnover to be above Rs. 15 Crore. It is also submitted that a plain interpretation of the language used in Clause 2(B) of the General Conditions of ITB gives a clear indication that it is the total annual turnover for last 3 financial years to be taken into consideration before arriving at the average annual turnover.
18. Mr. Choudhury submits that the respondent authorities have borrowed the amount for the project from the World Bank and in such a situation, the present petitioner is offering the bid amount with a difference of more than Rs. 1 Crore to that of the respondent No. 8. The respondent authorities are supposed to consider the bid of the petitioner from the said angle keeping the public interest, inasmuch as the said excess amount as quoted by the respondent No. 8 would ultimately be drawn from the public exchequer. In order to buttress, the submissions of Mr. Choudhury so far the word 'average' and its connotation is concerned, he relies on the case of Harbans K um ari and others v. State of Uttar Pradesh reported in (1979) 2 SCC 239 paragraph 4 of which is quoted below for ready reference:-
Page 9 of 20
WP(C) 2500/2017 "4. ......... Now so far as the connotation of the word 'average' is concerned, it does not admit of any doubt. According to Shorter Oxford English Dictionary, the word 'average' means 'arithmetical mean: to estimate by dividing the aggregate of a series by the number of its units'. The same is the connotation of the word 'average' according to the Random House Dictionary of the English Language where the total receipt has been stated to mean the total receipt from sales divided by the number of the units sold."
19. Accordingly, Mr. Choudhury submits that the interpretation of Clause 2(B) of the General Conditions has been misinterpreted by the respondent authorities and the same is liable to be interpreted by this court inasmuch as the said misinterpretation has been done in order to oust the present petitioner arbitrarily which amounts to violation of Article 14 of the Constitution of India.
20. Mr. Saikia, the learned Senior Additional Advocate General, Government of Assam, submits that the meeting for amendment sought on tender clause was held on 09.11.2016. In the said meeting, the petitioner requested to change the existing criteria of Clause 2(B) i.e. 'INR 15 Crore in each of the last 3 financial years' to 'average annual turnover of INR 15 Crore from the last 3 financial years'. The said pre-bid meeting was held on 11.11.2016 and was communicated on 01.12.2016 and the petitioner was aware that the request for change in the said Clause 2(B) with regard to the financial eligibility was rejected. But without challenging the said rejection order before this court, the petitioner belatedly approached this court which itself is fatal considering the delay and laches on the part of the petitioner. Not only that, the petitioner also participated knowing fully well about the requirements for financial eligibility. Under such circumstances, Page 10 of 20 WP(C) 2500/2017 question of judicial review does not arise at all. On the part of respondent authorities, once the said request for changing the criteria of the financial eligibility was rejected, there was no point in waiting further, inasmuch as the importance of such criteria for being eligible to participate in the bidding was purely to examine the financial capability of the party/ parties participating in the bidding process. In such a situation, the respondent authority cannot change the said criteria in order to satisfy the grievance of a particular bidder.
21. Mr. Saikia further submits that initially an inadvertent error was carried out by the Tender Evaluation Committee. On the basis of such error, the petitioner was declared to be a technically qualified bidder following which the financial bid of the petitioner was considered. The petitioner was the L1 bidder, for which the same was sent to the World Bank for giving its NOC in awarding the contract to the petitioner. But the World Bank detected the said erroneous view of the Tender Evaluation Committee and rejected the financial eligibility of the petitioner. Subsequent to that, the respondent No. 8 became the L1 bidder whose name was cleared by the NOC after verifying the financial eligibility as per Clause 2(B) of the General Conditions of the ITB. It is submitted further that there is no hide and seek policy maintained by the respondent authorities rather everything is transparent as per the terms stipulated in the General Conditions.
22. With respect to the interpretation of the word 'average', Mr. Saikia submits that the criteria as specified in Clause 2(B) of the General Conditions, the same must be read as a whole and in totality without leaving aside the word 'each' inasmuch as the complete reading of the said eligibility criteria gives the interpretation which is very well understood by the petitioner following which the Page 11 of 20 WP(C) 2500/2017 petitioner had requested to change the said criteria bringing amendment to it. This, the petitioner sought for, knowing fully about its disqualification considering its financial eligibility as per the criteria mentioned in the General Conditions. The respondent authorities cannot deviate from the said financial criteria prescribed as the same would mean doing injustice to various other bidders who did not participate owing to their incapability for compliance on their part of the financial eligibility criteria. In order to support his submissions, Mr. Saikia relies on the case of Central Coalfields Lim ited and another v. SLL-SM L (Joint Venture Consortium ) and others along with the case of PLR-R PL-SM ASL (JV) v. SLL-SM L (Joint Venture Consortium ) and others reported in (2016) 8 SCC 622 paragraphs 33, 34, 35 and 43 of which are quoted below for ready reference:-
"33. In Ramana Dayaram Shetty V. International Airport Authority of India this Court held that the words used in a document are not superfluous or redundant but must be given some meaning and weightage:
"7. ......... It is a well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document "and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use". To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable."
34. In Ramana Dayaram Shetty case, the expression "registered IInd Class hotelier" was recognised as being inapt and perhaps ungrammatical; nevertheless common sense was not offended in describing a person running a registered IInd grade hotel as a registered IInd class hotelier. Despite this construction in its favour, Respondent 4 in that case were held to be factually ineligible to participate in the bidding process. Page 12 of 20 WP(C) 2500/2017
35. It was further held that if others (such as the appellant in Ramana Dayaram Shetty case) were aware that non-fulfilment of the eligibility condition of being a registered IInd class hotelier would not be a bar for consideration, they too would have submitted a tender, but were prevented from doing so due to the eligibility condition, which was relaxed in the case of Respondent 4. This resulted in unequal treatment in favour of Respondent 4 - treatment that was constitutionally impermissible. Expounding on this, it was held:-
"10. ... It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege."
43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the decision-making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-Judge decision in Tata Cellular v. Union of India which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the courts will not judicially review the decision taken. Similarly, the courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular) in Jagdish Mandal v. State of Orissa in the following words:-
"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 Page 13 of 20 WP(C) 2500/2017 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." This Court then laid down the questions that ought to be asked in such a situation. It was said:-
"22. ...... 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."
23. Mr. Saikia further relies on the case of Directorate of Education and others v. Educom p Datam atics Ltd. and others reported in (2004) 4 SCC 19 paragraph 12 of which is quoted below for ready reference:-
"12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias, it is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the government because it feels that some other terms in the Page 14 of 20 WP(C) 2500/2017 tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide."
Thus Mr. Saikia submits that there is no scope at all by this court neither to interprete and give a fresh meaning with regard to the financial eligibility nor is there any scope for judicial review, inasmuch as, the action of the respondent authorities is not in any way arbitrary, discriminatory or actuated by bias.
24. Regarding the price difference as submitted by Mr. Choudhury, learned counsel for the petitioner, Mr. Saikia submits that the project requires maintenance after installation of the various items by the successful bidder. To that effect, rates were asked to be quoted and so far the present petitioner is concerned, it quoted a very low rate insofar as maintenance is concerned. Finding the same to be low, the respondent authorities asked the petitioner to enhance the Performance Bank Guarantee to which it agreed. So Mr. Saikia submits that the question of payment in excess from the State Exchequer cannot be considered at all, sacrificing the performance intended by the respondent authorities.
25. Mr. RK Agarwal, learned counsel for the respondent No. 8, argues in the similar line as that of Mr. Saikia. He submits that the submission of the learned counsel for the petitioner that there is a wide difference in the bid amount cannot be a criterion in changing the financial eligibility clause favouring the petitioner. It is submitted further that the price may not be the sole criterion for awarding a contract rather it is the best offer that is to be chosen by the Evaluation Committee of experts. In support of the said submission, Mr. Agarwal relies on the case of R aunaq International Ltd. v. I.V.R . Construction Ltd. Page 15 of 20 WP(C) 2500/2017 and others reported in (1999) 1 SCC 492 paragraph 16 of which is quoted below for ready reference:-
"16. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work can be legitimately paid in order to secure proper performance of the contract and good quality of work - which is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee."
Thus, Mr. Agarwal submits that the writ petition is liable to be dismissed.
26. Considered the submissions of the learned counsels. Clause 2(B) of the General Conditions of the ITB for financial eligibility reads as follows:-
"The Bidder must have minimum average annual turnover of INR 15 Crores in each of the last 3 financial years. The revenues must be accrued from sale of similar items as per items".
As against the said conditions of financial eligibility, the petitioner has submitted before the respondent authorities as follows claiming their qualification:-
"21. That the turnover of the petitioner company in the financial years 2012-13, 2013-14 and 2014-15 were Rs. 8,21,86,246.86, Rs. 12,43,34,6278.97 and Rs. 27,45,26,752.48 respectively, as certified by its Chartered Accountant. The total turnover of the petitioner company for the said last 3 years is :
Rs. 8,21,86,246.86 + Rs. 12,43,34,6278.97 + Rs. 27,45,26,752.48 = Rs. 48,10,59,278.31 Therefore, its average annual Turnover of last 3 financial years is : Rs. 48,10,59,278.31 ÷ 3 = Rs. 160353092.77 i.e. Rs. 16,03,53,093 (rounded off) Page 16 of 20 WP(C) 2500/2017 This is as per the Annual Turnover Statement dated 21/09/2015 prepared by the petitioner company's Chartered Accountant."
27. From the aforesaid turnover it is very much apparent that the total average turnover shown is for the 3 (three) financial years but not in each of the last 3 financial years. It is also on record that the petitioner finding itself difficult to overcome the criteria set out for the financial eligibility, also requested the respondent authorities to change the said criteria to "Average Annual Turnover of INR 15 Crore for the last 3 financial years" in place of "each of the last 3 financial years". However, the respondent authorities refused to carry out the said amendment of the criteria set out for the financial eligibility. Even then, the petitioner submitted their average annual turnover for the last 3 financial years taking the mean for a block of 3 financial years against the term set out by the respondent authorities. The respondent authorities accepted the said average annual turnover of last 3 financial years of the petitioner and informed the petitioner about acceptance of their financial eligibility. However, the said erroneous acceptance of the criteria was detected by the World Bank following which the bid of the petitioner was rejected by the World Bank. Upon such rejection, the respondent No. 8 became the L1, inasmuch as, the said respondent No. 8 fulfils the financial eligibility criteria set out by the respondent authorities as required by the World Bank.
28. Being aggrieved by the said rejection, the petitioner has preferred this writ petition seeking an interpretation by this court of the said financial criteria set out by the respondent authorities. As held in (2016) 8 SCC 622 (supra), the court should not be prompt to ascribe superfluity to the language of a document Page 17 of 20 WP(C) 2500/2017 and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. As submitted by Mr. Saikia, that the project is a very important one and the same requires not only the technical expertise of the bidders but they must be financially capable and strong enough to carry out and complete the project and the requisite maintenance thereafter. Behind such a backdrop the said standard has been introduced by the World Bank in order to examine/ scrutinise the financial capability of the bidders. For the said reasons, it has been stipulated that the bidder must have minimum average annual turnover of INR 15 Crore in each of the last 3 financial years. In other words, the bidder must have a minimum average annual turnover of INR 15 Crore in each of the last 3 financial years. In such a situation, if the criterion so set out is read without the word 'each', it would amount to downgradation of the financial eligibility of the bidders which would affect immensely to the respondent authorities. Accordingly, keeping in view the ratio accepted by the Hon'ble Apex Court, this court cannot enter into tender documents and interprete the conditions so laid down which have its own meaning and set out by the respondent authorities keeping in view their necessity.
29. The rejection of the petitioner's bid owing to failure to satisfy the financial eligibility cannot be considered to be arbitrary, irrational, unreasonable or biased. The petitioner knowing fully well their capability with regard to the financial eligibility criteria so set out by the respondent authorities, sought for the amendment of the said clause which was disallowed and knowing fully well that the petitioner cannot overcome the said criteria, participated in the tender. The act of respondent authorities, keeping in view the criteria, though belatedly Page 18 of 20 WP(C) 2500/2017 pointed out by the World Bank, in the opinion of this court has done so correctly, because the petitioner knew about its fate at the time of participation in the tender process. On the other hand, if this court gives an interpretation, as submitted by the learned counsel for the petitioner, the same would amount to crossing the limit by this court the jurisdiction circumscribed for judicial review of the terms set out in the NIT. On the submission of the learned counsel for the petitioner, that an interpretation of the said criterion is to be given by this court, it would amount to taking over the function of the tender issuing authority by this court, which cannot be done. This court cannot even examine the soundness of the decision arrived at by the respondent authorities until and unless the petitioner discharges its burden showing that the action of the respondent authorities is with a discriminatory attitude towards it.
30. As submitted by Mr. Saikia that the petitioner ought to have come to this court when their request for amendment of the said criterion was rejected also cannot be accepted, inasmuch any condition set out in the NIT has its intrinsic value known to the authority issuing the NIT and the case in hand does not call for such interpretation by this court. However, if there are glaring irregularities in setting out the conditions, then the matter would be a different one. But until and unless the same could be shown that the said terms and conditions are superfluous, in order to give some undue benefit to any party, then this court to some extent has the jurisdiction to look into it. Accordingly, this court refrain itself from interpreting the said criterion with regard to financial eligibility of the bidders, other than the one which gives the plain and simple meaning by reading Page 19 of 20 WP(C) 2500/2017 the sentence as a whole and understood by any prudent man including the respondent authority.
31. The submission of Mr. Choudhury that while rejecting the bid of the petitioner on the ground of financial ineligibility, the respondent authorities ought to have considered that there is a vast difference against the rate quoted between the petitioner and the respondent No. 8 and keeping in view the public interest, the petitioner company ought not have been disqualified only on the ground of non satisfaction of its financial eligibility. Against the said submission this court is of the view that if the respondent authorities allowed the petitioner company as the successful bidder, that would be a clear act of discrimination towards the other prospective bidders who owing to their incapability to meet the financial eligibility criteria could not participate in the tender process. Accordingly, such submission is rejected.
32. Finally, this court finds that the petitioner has failed to bring out a case for judicial review of the decision making process of the respondent authorities, inasmuch as, the petitioner has failed to show any of the requisite ingredient required for judicial review by this court. Accordingly, this writ petition stands dismissed.
33. Interim order passed earlier stands vacated.
JUDGE BiswaS Page 20 of 20 WP(C) 2500/2017