Bombay High Court
Agni Aero Sports Adventure Academy vs Indian Institute Of Tropical ... on 2 July, 2010
Author: D.D.Sinha
Bench: D.D. Sinha, Mridula Bhatkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.4257 OF 2010
WITH
CIVIL APPLICATION NO.1404 OF 2010
In
WRIT PETITION NO.4257 OF 2010
1. Agni Aero Sports Adventure Academy
Private Limited,
a company incorporated under the
provisions of the Companies Act, 1956
having its registered office at Hangar No.2,
Jakkur Aerodrome, 12th K.M. Bellary Road,
Bangalore--560 064.
2. Mrs.Sapna Sharma,
adult, Indian inhabitant,
residing at 99/A, 17B Main Road,
Block 5, Koramangala,
Bangalore--560 095. : Petitioners
V/s.
1. Indian Institute of Tropical Meteorology,
an autonomous institute of the Ministry of
Earth Sciences set up by the Union of India
under the Posts and Telegraphs Act, having
its regional office at Dr.Homi Bhaba Road,
Pashan, Pune--411 008.
2. Union of India,
through the Ministry of Earth Sciences
having its headquarters at Mahasagar
Bhawan, Block 12, C.G.O. Complex,
Lodhi Road, New Delhi--3.
3. Dr.Daniel Rosenfeld
::: Downloaded on - 09/06/2013 16:04:59 :::
2
though the Program of Atmospheric Sciences
Institute of Earth Sciences
The Hebrew University of Jerusalem
Jerusalem 91904 Israel. : Respondents
....
Mr.Ravi Kadam, Senior Advocate, with Mr.S.U.Kamdar, Senior
Advocate, i/b. Mr.Mobhit Gadkari & Co., for the petitioners.
Mr.G.S.Godbole i/b. Mr.S.M.Railkar for respondent no.1.
Mrs.Soma Singh for respondent no.2.
....
ig CORAM : D.D. SINHA AND
MRS.MRIDULA BHATKAR,JJ.
Date of Reserving )
the Judgement. ) : 17.06.2010.
Date of Pronouncing )
the Judgement. ) : 02.07.2010.
JUDGEMENT (Per D.D.Sinha,J.)
Heard the learned Advocate General appearing for the petitioners, Mr.Godbole appearing for the respondent no.1 and Mrs.Soma Singh appearing for the respondent no.2.
2. Rule, returnable forthwith.
The learned counsel for the respective respondents waive service.
By consent of the parties, heard finally.
::: Downloaded on - 09/06/2013 16:04:59 ::: 33. The following facts have given rise to the filing of the present petition:
The tender process in question was initiated by the respondent no.1 for the purpose of availing aviation support for its CAIPEEX-II experiment. CAIPEEX is an acronym for cloud aerosol interaction for precipitation enhancement experiment. The tenders were called for supply, installation and demonstration of three stores/goods/equipments, viz:-
(i) Cloud Physics Aircraft (research aircraft).
(ii) Cloud seeding aircraft (seeder aircraft); and
(iii) Polarimetric radar.
4. It is the case of the petitioners that the bidders were permitted to bid for all three stores or for any of them as per clause 3 of the tender document which reads thus:-
"A bidder may bid for any one or more of the items/stores/goods/equipments mentioned in Section V. A separate bid needs to be submitted for each item/store/goods/equipment as per norms given below."::: Downloaded on - 09/06/2013 16:04:59 ::: 4
5. The learned Advocate General has submitted that following three tender notices were issued by the respondent no.1. The first tender notice was issued on 12.11.2009. The petitioners were the only bidder who had submitted a bid pursuant to the said tender notice within a stipulated time prescribed in the said tender. M/s.Krishi Consultants submitted their bid after the specified time in contravention of the tender conditions 16.1 and 16.2 of the said tender document and, therefore, the said tender of M/s.Krishi Consultants was liable to be rejected on this sole ground alone.
It is contended that the respondent no.1 extended last date of submission of bid (24.12.2009) to 11.1.2010 only to favour M/s.Krishi Consultants by issuing a corrigendum.
6. The learned Advocate General further contended that the second tender notice was issued by the respondent no.1 on 11.1.2010 whereby sealed tenders were invited under two bid system i.e. Technical Bid and Commercial Bid from reputed Indian/foreign manufacturers/authorised distributors/authorized dealers or their authorized Indian Agents for the supply, commissioning and demonstration of stores mentioned in the said tender notice. Pursuant to the said second tender notice, the petitioners and M/s.Krishi Consultants submitted bid for all these stores, whereas, one M/s.ARC submitted bid only for radars. It is the case of the ::: Downloaded on - 09/06/2013 16:04:59 ::: 5 petitioners that during presentation of bids by the respective parties, various discrepancies were noted by its representative. It is submitted that by virtue of clause 5.2 of the tender document, the tender submitted by M/s.Krishi Consultants was ineligible since it was not in conformity with the said clause. Clause 5.2 of the said tender document reads thus:-
"The Indian/Foreign Original Equipment Manufacturing companies (or their authorized distributors/dealers/Indian Agents) should have been in the business of supply of the stores/goods/equipments successively for the last three years."
The petitioners also pointed out other disqualifying factors pertaining to the bid submitted by M/s.Krishi Consultants for the 1st respondent. It is the case of the petitioners that the petitioners have also brought these facts to the knowledge of the Hon'ble Minister of Earth Sciences, Government of India. The learned Advocate General has contended that the respondent no.1 to ensure that M/s.Krishi Consultants would continue in the bidding process notwithstanding its technical defects, scrapped the second tender notice and issued another tender notice.
::: Downloaded on - 09/06/2013 16:04:59 ::: 67. The third tender notice issued by the respondent no.1 on 26.2.2010 once again invited bids for the supply, installation and demonstration of stores/goods/equipments mentioned therein. However, the third tender notice did not contain clause 2.5 which was part of the second tender notice. The learned Advocate General has submitted that only three bids were received pursuant to the third tender notice, the bidders were the petitioners, M/s.Krishi Consultants and one Gamaetronics. The bids submitted by Gamaetronics was only for one store i.e. radar. It is the case of the petitioners that the 1st respondent sought clarifications on March 30 and April 8, 2010 which were duly replied by the petitioners by their letters dated 2.4.2010 and 19.4.2010. The petitioners stated that in response to its query, the 1st respondent sent an e-mail on 21.4.2010 intimating the petitioners that they were disqualified from CAIPEEX phase II project.
8. The learned Advocate General has contended that for the purpose of this petition, the relevant tender document is the third tender notice dated 26.2.2010 as well as the relevant tender documents and the petitioners are questioning the propriety and validity of the decision of the respondent no.1 in rejecting the petitioners' bid dated 22.3.2010.
9. The learned Advocate General has submitted that the respondent ::: Downloaded on - 09/06/2013 16:04:59 ::: 7 no.1 has till the filing of the present petition not furnished any reasons for disqualifying the technical bid of the petitioners. It is only after filing of the present petition that the respondent no.1 has sought to produce minutes of the meeting of the Evaluation Committee held on 5.4.2010, perusal of which reflects that the respondent no.1 has not applied the same yardstick for evaluating the technical bids of the petitioners and M/s.Krishi Consultants. It is contended that the Technical Expert Committee disqualified the tender of the petitioners on five counts. Those are as follows:-
"1. Program Manager, Member and Member-
Convener briefed the committee that the grace gas analyzers projected by M/s.AASAA are the same which were used during CAIPEEX Phase-I. The experiences of the scientists were that the instruments did not work to the satisfaction and due to which there was loss of valuable trace gas data. Hence, the Committee is of the opinion that the same problem of recording inaccurate trace gas data will persist in this phase also if same instruments are used.
Also, M/s.AASAA's clarification for corrective measures for proper performance of such equipment were not found satisfactory by the committee.::: Downloaded on - 09/06/2013 16:04:59 ::: 8
2. The aircraft proposed by M/s.AASAA is a Piper Cheyenne similar to that used during CAIPEEX Phase-I. In the present tender, there are additional instruments viz. SF6-gas tractor analyzer and radiation along with their power supply units. IITM's last year's experience was that there was very little space for scientists to carry out the work in the aircraft. These additional instruments will reduce space available inside, increase the weight and thereby reduce the range of the aircraft. Additionally, this may impact on the total crew carrying capacity of the aircraft. So aircraft offered may not be suitable for the proposed work envisaged for CAIPEEX Phase-II.
3. The sensitivity of the SF6 tracer required is in ppt range while M/s.AASAA have quoted with ppb range, which is 1000 times less sensitive than the technical requirement of the tender.
4. The quoted salt seeder aircraft do not have the capability to carry 500kg of salt as required by IITM.
5. Under the Specific Terms and Conditions the ::: Downloaded on - 09/06/2013 16:04:59 ::: 9 following requirements are to be met as per the tender: (i) The Bidder must provide the cloud microphysics information from satellites and (ii) The Bidder must install and train IITM scientists at IITM in simulation of cloud dynamics, microphysics and seeding impacts using the latest state-of-art cloud model."
The Technical Expert Committee in view of the above points disqualified the bid of the petitioners by observing thus:-
"M/s.AASAA's bid does not contain any information about the above two points. When clarification was sought, it was told that it will be provided. But while going through the CV's of the scientific team proposed by M/s.AASAA, there is no mention about the team's experience on these particular issues and there are no relevant publications.
Considering all the above technical deficiencies in the bid submitted by M/s.AASAA, committee is of the opinion that M/s.AASAA is not technically qualified and therefore ::: Downloaded on - 09/06/2013 16:04:59 ::: 10 recommends the rejection of the bid."
10. The learned Advocate General further contended that the 1st respondent had sought clarification vide its letter dated 30.3.2010 from the petitioners as to whether space would be available in the aircraft for scientists after adding research instruments. The said query was answered by the petitioners in the affirmative by its letter dated 2.4.2010 which was duly received by the 1st respondent on 5.4.2010. However, the 1st respondent, for reasons best known to it, did not consider the petitioners' clarification to the queries raised during the meeting of 5.4.2010. It is submitted that the Technical Committee Member/Convenor Mr.Maheskumar was one of the Scientists who received training in Israel and who had sent the letter for clarification did not deliberately place the clarifications received from the petitioners before the Committee with ulterior motives.
11. It is submitted that it is the case of the petitioners that the petitioners had offered Trace Gas Analyzers produced by the manufactures M/s.ESA from France as well as from the manufacturers API from the U.S.A. which is evident from the tender bid. However, the 1st respondent deliberately disqualified the petitioners on the ground that the ESA gas analyzers were used in Phase I of CAIPEEX and they ::: Downloaded on - 09/06/2013 16:04:59 ::: 11 allegedly found to be inaccurate. It is further submitted that M/s.Krishi Consultants had offered API Trace Gas Analyzers in tender II and the said offer was considered by the 1st respondent and the bid submitted by M/s.Krishi Consultants was held to be a qualified bid. The learned Advocate General, therefore, contended that the said action of the 1st respondent indicates complete non-application of mind on the part of the respondent no.1 in this regard.
12. The learned counsel for the petitioners has submitted that even after 5.4.2010, another query was sent by the 1st respondent to the petitioners by their letter dated 8.4.2010. However, the 1st respondent deliberately did not consider the clarifications provided by the petitioners and acted in an arbitrary and unreasonable manner.
13. It is contended that the petitioners had provided a brief C.V. of Scientists offered by them in accordance with the condition prescribed in the said tender. However, one of the grounds of rejection of the petitioners' bid by the respondent no.1 was that there is no elaborate information in the C.V., viz., scientific team's experience in respect of particular issues set out therein.
14. It is contended that the respondent no.1 has placed reliance upon ::: Downloaded on - 09/06/2013 16:04:59 ::: 12 purported dissatisfaction in respect of equipment offered by the petitioners in CAIPEEX-II which, as per the respondent no.1, are the same as used in CAIPEEX phase I project and its performance was found to be unsatisfactory. The learned Advocate General has submitted that the respondent no.1 has constantly portrayed that CAIPEEX phase I was a successful project. The respondent no.1 has, in fact, by its letter dated 30.10.2010 addressed to Capt. Arvind Sharma, founder Director of the petitioner-company, acknowledged that ig CAIPEEX phase I programme had been successfully completed by fulfilling all its objectives which nullifies the stand taken by the 1st respondent in this regard.
15. It is contended that in accordance with tender condition no.
11.3(a) and (d), the petitioners had offered a detailed description of the proposed SF6 tracer, including its make, configuration and model. It is submitted that M/s.Krishi Consultants have not even specified what type or model of SF6 tracer it is offering for CAIPEEX phase II. The petitioners state that the respondent no.1 has, therefore, not even whispered about the technical compliance of M/s.Krishi Consultants in order to favour them.
16. It is further submitted that as regards disqualification in respect ::: Downloaded on - 09/06/2013 16:04:59 ::: 13 of carrying capacity pertaining to "salts" is concerned, the tender document provides that the "aircraft should also spray ....................... and should be equipped with a system for storing and spraying about 500 kgs. .............." It is, therefore, contended that the tender document itself prescribes that the capacity should be near about 500 kgs. and the capacity of the aircraft offered by the petitioners was almost 450 kgs., which comes very close to the requirement of the respondent no.1.
Hence, the respondent no.1 should not have disqualified the petitioners upon a purported condition which, in fact, did not feature in the tender document.
17. It is the case of the petitioners that the 1 st respondent has falsely contended that there is no information in the petitioners' bid document about the specific terms and conditions set out therein. Counsel for the petitioners has submitted that in the letter dated 2.4.2010 sent by the petitioners, a specific undertaking was given by the petitioners' accepting certain terms and conditions pertaining to microphysics information on satellites and training for the 1st respondent's Scientists.
18. The learned counsel for the petitioners has submitted that the respondent no.1 has absolutely no reasons to hold that the various equipments and its feasibility or otherwise offered by M/s.Krishi ::: Downloaded on - 09/06/2013 16:04:59 ::: 14 Consultants were concerning with the terms and conditions of the tender documents nor the yardstick which is applied insofar as the bid of the petitioners, the same yardstick was not applied in case of M/s.Krishi Consultants which is evident from the minutes of the meeting of the Technical Committee held on 5.4.2010. It is contended that the petitioners have imposed utmost trust on the members of the Evaluation Committee and expected them to apply their mind objectively and in a fair manner, they were expected to consider and compare the bids submitted by the respective parties by applying the same yardstick and on the basis of the same principles. It is further contended that the respondent no.1 has neither disclosed any reasons for approving the bid of M/s.Krishi Consultants in the commercial round nor has stated as to why and what conditions were relaxed so as to approve the bids of M/s.Krishi Consultants when as per their own minutes, the C-Band Doppler of M/s.Krishi Consultants was clearly lacking the requisite specification.
The learned Advocate General has contended that the Supreme Court in the judgement in the case of W.B. State Electricity Board v. Patel Engineering Co. Ltd. & Ors., reported in (2001) 2 SCC 451, has held that an international/global competitive bidding postulates keen competition and high efficiency and, therefore, it warrants equal application of all terms and conditions to all the bidders. It is submitted that in the present case, ex facie there has been a discrimination in the evaluation of the bids ::: Downloaded on - 09/06/2013 16:04:59 ::: 15 of the petitioners as against M/s.Krishi Consultants in spite of the petitioners being technically better qualified for the purposes of the present project.
19. The learned Advocate General has submitted that there is stark variation in the reasons for technical disqualification shown by the Committee for the same equipments offered by the petitioners, which indicates that there was a complete non-application of mind on the part of the Committee as well as total disregard shown by the Committee to the documents submitted by the petitioners for consideration. The Technical Committee has shown subjective approach towards the evaluation of technical bids rather than objective technical analysis.
20. The learned Advocate General has submitted that the following serious fall-outs of M/s.Krishi Consultants' bid has been conveniently overlooked by the respondent no.1 clearly with an oblique motive to favour M/s.Krishi Consultants, viz:-
(i) The petitioners state that flight certification is an essential condition of the said tender document.
(ii) The petitioners are supplying aircraft that have the necessary restricted category certification whereas M/s.Krishi Consultants has not obtained the restricted category ::: Downloaded on - 09/06/2013 16:04:59 ::: 16 certification and is offering a standard category aircraft. A standard category aircraft is used for carrying passengers whereas a seeder aircraft is modified to meet cloud seeding requirements. It is submitted that modifying a standard category aircraft into an aircraft for weather control/cloud seeding purposes is a tedious and time-consuming process and will take considerable time for M/s.Krishi Consultants to modify the standard aircrafts offered by it. It is submitted that this aspect has not been denied by the 1st respondent nor was it contested during the hearing before us.
21. The learned Advocate General further contended that the respondent no.1 sought to place reliance upon "Swamy's General Financial Rules" which purportedly lays down norms and/or prescribed conditions which the respondent no.1 has sought to apply. The stand of the respondent no.1 that the second tender notice was scrapped and fresh bids were invited under which the petitioners stand disqualified was in view of Swamy's General Financial Rules on which the respondent no.1 has placed reliance. Hence, the dissatisfaction in respect of the bid of the petitioners expressed by the Committee was on vague and frivolous grounds and with the sole purpose to favour M/s.Krishi Consultants.
Hence, the said action on the part of the respondent no.1 is wholly ::: Downloaded on - 09/06/2013 16:04:59 ::: 17 arbitrary, illegal and unsustainable in law. It is submitted that the bid of the petitioners is only qualified bid and the the dissatisfaction expressed by the Expert Committee was solely with a view to eliminate competition and to favour M/s.Krishi Consultants.
22. The learned Advocate General has submitted that specifications for C-Band Doppler Radar/C-Band Doppler Polarimetric radar required to be supplied by the bidders mentioned in the tender document read thus:-
"Technical specifications of a suitable radar described below should be given at the time of bidding. This specification outlines the minimum technical requirements for the supply of one stationary weather radar systems as remote sensors for meteorological purposes including full Doppler and polarimetric capabilities."
It is, therefore, contended that for "store C", supply of a polarimetric radar is an essential minimum requirement. The petitioners offered to supply the said radar whereas M/s.Krishi Consultants had offered a C-
Band Doppler Radar (non-polarimetric). (This fact is admitted by the respondent no.1 in the additional affidavit-in-sur-rejoinder filed on ::: Downloaded on - 09/06/2013 16:04:59 ::: 18 record). It does not even meet the minimum technical requirement of `store C' polarimetric radar.
23. The learned Advocate General has submitted that the action of the respondent no.1 in rejecting the petitioners' bid at the technical stage was actuated by mala fides contrary to the conduct expected by an autonomous institution of the Government. It is further contended that the respondent no.1 has stated in its sur-rejoinder that the respondent no.1 was not satisfied with the consortium issue of M/s.Krishi Consultants at the time of the second bid. However, it is evident from exh.IV annexed to the sur-rejoinder submitted by the respondent no.1 that the third bid also comprised of the same consortium i.e. M/s.Krishi Consultants (Krishi Consultants, Hoysala builders, WWC) but the same has now been qualified by the Technical Expert Committee by going out of their way to create a single vendor situation so as to favour M/s.Krishi Consultants even at the cost of compromising a project of national interest. It is submitted that the petitioners are more than adequately qualified and have incurred the disqualification solely because the respondent no.1 is desirous of eliminating all competition in awarding the tender to M/s.Krishi Consultants, the only other bidder for all three stores. The learned Advocate General, therefore, most respectfully submitted that this Court be pleased to issue an appropriate writ, order or direction by ::: Downloaded on - 09/06/2013 16:04:59 ::: 19 exercising the powers under Article 226 of the Constitution to the respondent no.1 to declare the petitioners' bid at exh.`Q' for store-A -
Cloud Physics Aircraft and sore-B - Cloud Seeding Aircraft as technically qualified and accept the same.
24. The learned Advocate General has submitted that the petitioners have raised the following issues before this Court:-
(i) The petition filed by the petitioners is bad for non-joinder of M/s.Krishi Consultants.
(ii)The CAIPEEX-II is a time bound programme and this petition will cause delay in the implementation of the said project.
(iii)The decision by the Evaluation Committee is a technical decision and the same cannot be substituted by the decision of this Court.
25. In response to the above contentions, the learned Advocate General has submitted that so far as the issue of non-joinder is concerned, the bid is at the stage of opening of technical bids and the same does not vest any inherent right for M/s.Krishi Consultants to be awarded the tender. The commercial bid is yet to be opened and only after the same is opened, the decision of awarding tender can be taken. Thus, at the stage of evaluation of a technical bid of the respective parties, M/s.Krishi Consultants is neither a necessary nor proper party to the present petition.
::: Downloaded on - 09/06/2013 16:04:59 ::: 20It is further contended that the petitioners have not made any allegation of mala fide against M/s.Krishi Consultants and thus M/s.Krishi Consultants is neither a necessary nor a proper party to the present proceedings. In order to substantiate the said contention, reliance is placed on the law declared by the apex Court in the case of The General Manager, South Central Railway, Secunderabad and Anr. v. A.V.R. Siddhantti & Ors., reported in (1974) 4 SCC 335.
26. As regards the issue of CAIPEEX-II being time bound programme, it is contended that the respondent no.1 has in its own advertisement displayed on website, stated that the proposed experiment is said to be carried out in three phases. The present tender being phase II, viz., precipitation enhancement experiment to be carried out by artificially seeding the clouds in the year 2010-11. Clause 22.3 of the third Global Tender provides:-
"Goods/equipments shall be delivered during July 10 and August 10 and is extendable upto September 2010."
It is, therefore, contended that this clause clearly demonstrates that time was never a strict consideration for the present project and thus nullifies ::: Downloaded on - 09/06/2013 16:04:59 ::: 21 the submission of the respondent no.1 that the present petition seeks to delay the implementation of CAIPEEX phase II.
27. As regards the issue of substitution of the view of the Evaluation Committee by this Court, it is contended by the learned counsel for the petitioners that it is the decision making process rather than the decision itself which is under scrutiny of this Court. The petitioners seek to challenge the arbitrary action of the 1st respondent based on wrong decision making process which was also unfair, improper and has resulted in disqualification of the technical bid of the petitioners. The learned Advocate General, therefore, submitted that this Court is vested with jurisdiction to entertain the present petition under Article 226 of the Constitution.
28. Mr.Godbole, the learned counsel for the respondent no.1, has submitted that the main grievance of the petitioners is that the respondent no.1 has allegedly shown bias in favour of M/s.Krishi Consultants while accepting its technical bid. The entire petition is full of allegations of mala fides and favouritism without there being any foundation. In the body of the petition, there are various allegations made against the respondent no.1 as also against M/s.Krishi Consultants, but M/s.Krishi Consultants is not joined as a party-respondent, though it is a necessary ::: Downloaded on - 09/06/2013 16:04:59 ::: 22 party to the petition.
29. Counsel for the respondent no.1 has submitted that the allegations made by the petitioners against M/s.Krishi Consultants cannot be looked into as the petitioners have failed to join M/s.Krishi Consultants as a party-respondent in spite of the same being a necessary party and, therefore, the petition is liable to be dismissed solely on this ground for non-joiner of necessary party.
30. Counsel for the respondent no.1 further contended that the petitioners without joining M/s.Krishi Consultants cannot make allegations against the same. Since the petitioners failed to join M/s.Krishi Consultants as a party-respondent, this Court, in such circumstances, cannot look into the allegations made by the petitioners either against M/s.Krishi Consultants or against the respondent no.1. It is submitted that if the allegations made by the petitioners are accepted, then it will amount to condemning M/s.Krishi Consultants without hearing them and without offering an opportunity to put up their defence.
31. Mr.Godbole, the learned counsel further submitted that the allegation that equipments sought to be provided by the petitioners are better than the equipments sought to be provided by M/s.Krishi ::: Downloaded on - 09/06/2013 16:04:59 ::: 23 Consultants also cannot be considered by this Court for the same reason i.e. non-joinder of necessary party (M/s.Krishi Consultants).
32. The counsel for the respondent no.1 has submitted that insofar as the allegations of mala fides made by the petitioners against the respondent no.1 are concerned, the same are absolutely baseless. From November 2009 to March 2010, all three occasions, tenders were floated for the purpose of implementation of CAIPEEX phase II and on second and third occasions, the tenders were considered and evaluated by the Technical Evaluation Committee which consisted of highly qualified Scientists not only from the respondent no.1 institute but from important institutes all over the country. Though it is a fact that first two tenders were scrapped, so far as the grievance raised by the petitioners in the present petition in respect of the action of the respondent no.1 whereby the earlier two tenders were scrapped is of no relevance since the issue involved in the present petition is in respect of third tender issued by the respondent no.1.
33. The learned counsel for the respondent no.1 has submitted that as far as the bid in question of the petitioners is concerned, the Technical Expert Committee (TEC) has found that the equipments sought to be used by the petitioners do not meet the five important criteria. It is specifically ::: Downloaded on - 09/06/2013 16:04:59 ::: 24 submitted that detailed comparison of all the bids received was made and the areas in which clarifications were required, the concerned companies were called upon to give their explanation in that regard. Even the petitioners have admitted in their presentation for correct measures regarding proper performance of its equipments could be taken. It is, therefore, contended that the admission of the petitioners shows that the petitioners were aware about the fact that instruments sought to be supplied by them were not upto the mark.
ig Mr.Godbole, the learned counsel for the respondent no.1, further contended that three members out of six-member Technical Expert Committee i.e. (i) Dr. Vidhyadhar Mudkavi, who is Ph.D, Senior Scientist and Head of Computational and Theoretucak Fluid Dynamics Division, National Aeronautical Laboratory (NAL), Bangalore, was the Chairman of the Committee; (ii) Dr.P. Pradeepkumar, who is also Ph.D. and Senior Scientist and Head of the Department of Atmospheric and Space Sciences (DASS), University of Pune; and (iii) Mr.V.K.Soni, who is a Meteorologist, Indian Meteorological Department (IMD), Pune, are not from the respondent no.1 institute and, therefore, the allegations made by the petitioners against the respondent no.1 of favouritism are wholly incorrect.
34. Mr.Godbole further contended that CAIPEEX was to be implemented in three phases and the first phase was commenced in the ::: Downloaded on - 09/06/2013 16:04:59 ::: 25 monsoon of 2009, all data was collected from various parts of the country which basically was a phase to collect necessary data. Phase II is the implementation part of the project and is required to be undertaken in the current monsoon season since it actually involves cloud seeding. This phase is a most important phase of experiment and, therefore, required many more instruments than were required in phase I and, therefore, the aircraft sought to be used by the petitioners has not been accepted and the Technical Expert Committee, therefore, is justified to disqualify the bid of the petitioners.
35. Mr.Godbole further submitted that the Technical Expert Committee has considered the difference between the two phases and thus come to the conclusion that the bid of the petitioners is not technically sound. It is further submitted that phase II has to be commenced in the monsoon season and then it can be continued for a short time in post monsoon season. Reliance placed by the petitioners on clause 25.3 to contend that the goods under that batch can be delivered upto September 2009 is wholly misconceived and misleading. It is also necessary to note that clause 2.3 speaks about the contract period and not the period during which the actual phase II is to be implemented.
::: Downloaded on - 09/06/2013 16:04:59 ::: 2636. It is contended by the learned counsel for the respondent no.1 that the minutes of the meeting of the Technical Expert Committee show that the bid of the petitioners was disqualified on five counts. (They are already mentioned in the earlier part of this judgement). Mr.Godbole further contended that unless and until this Court finds that the conclusions arrived at or conclusion drawn by the TEC are such that they cannot be reached by a prudent man, this Court does not have power to interfere with the same. In order to substantiate this contention, reliance is placed on the judgement of the apex Court in the case of Jagdish Mandal v. State of Orissa [(2007) 14 SCC 517].
37. It is contended that the present tender process pertains to highly specialized equipments of cloud seeding. This is an area where highly trained persons who are well-equipped with technical know-how of meteorological science, cloud seeding, etc., are necessary. The Technical Expert Committee consists of six members, all are well qualified and well equipped with the knowledge and expertise in the field. It is contended that the Committee consisting of such highly qualified persons in the field has found that the bid of the petitioners was technically short of the requirement of phase II and having considered the bid in totality, have rejected the same. It is contended that since this Court does not possess the necessary technical expertise to deal with such issues, cannot ::: Downloaded on - 09/06/2013 16:04:59 ::: 27 substitute its own views for the views of the Technical Expert Committee and also cannot go into the technical assessment made by the TEC. It is contended that the apex Court in its judgement reported in (2007) 14 SCC 517 has specifically dealt with the power of judicial review of this Court and the learned counsel placed reliance to substantiate the above referred contention on the said judgement of the apex Court.
38. Mr.Godbole, the learned counsel further contended that the experiment which is undertaken by the respondent no.1 is of national importance and will prove helpful for the entire Nation. Though the experiment is being conducted in the State of Maharashtra and if the objective of the project is achieved, this project will be useful and beneficial for the entire country. It is submitted that the success of the project/programme depends upon the continuity of the project. Looking to the object of the project, implementation of Phase II in the current monsoon season is of utmost importance. If the continuity is broken, the respondent no.1 may have to collect fresh data i.e. re-starting the experiment from the beginning. It is submitted that if the respondent no.1 fails to implement Phase II of the project in monsoon season, then the implementation of the programme will have to be undertaken only in the monsoon season of 2011.
::: Downloaded on - 09/06/2013 16:04:59 ::: 2839. Mr.Godbole, the learned counsel has submitted that during the course of arguments, the learned counsel for the petitioners has made a statement that the petitioners have submitted three separate technical bids envelopes in respect of items `A', `B' and `C' of the tender. It is further submitted that the Technical Expert Committee in its meeting dated 4.2.2010 had already found the petitioners' bid for supply of item no.`C' i.e. radar as technically competent, hence the respondent no.1 would open the envelope of the petitioners containing technical bid for radar.
40. Mr.Godbole, the learned counsel for the respondent no.1, has contended that the petition suffers from lack of merit and is liable to be dismissed.
41. We have given our anxious thoughts to the various contentions canvassed by the learned respective counsel for the parties. In the present case, the tender process was initiated by the respondent no.1 for the purpose of availing aviation support for its CAIPEEX-II experiment.
The tender was for the supply, installation and demonstration of three stores/goods/equipments, viz., (i) cloud physics aircraft (research aircraft); (ii) cloud seeding aircraft (seeder aircraft); and (iii) polarimetric radar. Bidders were permitted to bid for all the three stores or for any of them. The respondent no.1 issued tender notice on 12.11.2009 for ::: Downloaded on - 09/06/2013 16:05:00 ::: 29 CAIPEEX phase II. Last date of submission of tender was 24.12.2009.
The petitioners as well as M/s.Krishi Consultants submitted their bids pursuant to the said tender notice. The case of the petitioners is that M/s.Krishi Consultants submitted its bid after the last date of submission was over. Hence, the respondent no.1 ought to have disqualified the bid of M/s.Krishi Consultants. However, the respondent no.1 extended the last date for submitting the bid upto 11.1.2010 to favour M/s.Krishi Consultants. The second tender notice was of 11.1.2010 pursuant to which once again the petitioners and M/s.Krishi Consultants submitted their bid for all these stores and one M/s.ARC submitted bid only for radar stores.
42. Both the tender notices and the steps taken as well as the tender process initiated were scrapped. The Respondent no.1 issued third tender notice on 26.2.2010 and invited bid for supply, installation and demonstration for the stores, goods and equipments mentioned therein.
Pursuant to the third tender notice, three bids were received and the bidders were the petitioners, M/s.Krishi Consultants and Gamaetronics.
As per the requirement of condition of tender, technical bid and financial bids were to be submitted in different envelopes. The technical bid of all the bidders was considered by the Evaluation Committee in the meeting held on 5.4.2010. The Committee noticed five deficiencies (already ::: Downloaded on - 09/06/2013 16:05:00 ::: 30 stated hereinabove) in the bids submitted by the petitioners and expressed its opinion that the bid of the petitioners was not technically qualified and, therefore, recommended rejection of the bid of the petitioners. In the present Writ Petition, the petitioners have questioned the validity and propriety of the decision of the Evaluation Committee and sought a direction to quash and set aside the decision of the respondent no.1 in rejecting the bids submitted by the petitioners. The petitioners are seeking further direction to the respondent no.1 to accept the petitioners' bid of 22.3.2010.
43. The learned Advocate General vehemently contended that the action of the tender Evaluation Committee is discriminatory since the Committee failed to apply the same yardstick while evaluating the technical bid of M/s.Krishi Consultants. Another contention canvassed by the Advocate General was that the act on the part of the respondent no.1 to only qualify M/s.Krishi Consultants has resulted in "single window entry situation" which is wholly arbitrary and illegal, particularly since the petitioners were disqualified. It was contended that the bid of the petitioners was disqualified solely to eliminate all competitions so that the respondent no.1 can conveniently award the tender to M/s.Krishi Consultants. The third argument of the learned Advocate General was that the respondent no.1's decision to technically disqualify the petitioners ::: Downloaded on - 09/06/2013 16:05:00 ::: 31 was actuated by mala fides.
44. Mr.Godbole, the learned counsel for the respondent no.1, on the other hand, contended that the bid of the petitioners was carefully considered by the Technical Evaluation Committee and minutes of the said meeting would show that there were five reasons given by the Committee for disqualifying the technical bid of the petitioners. It is contended that in the opinion of the Committee, the bid of the petitioners was suffering from five deficiencies which are mentioned in the minutes of the Committee and, therefore, the respondent no.1 was justified in rejecting the bid of the petitioners. It is further submitted that since the bid of the petitioners was not in conformity with the requirement stipulated in the tender document, the respondent no.1 was justified in rejecting the same.
45. Before we consider the issue on merit, it will be appropriate to consider the law declared by the apex Court on the subject. It is well-
settled that while exercising power of judicial review in respect of the contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the decision making process, and can certainly examine whether the decision making process was rational, not arbitrary and violative of Article 14 of the ::: Downloaded on - 09/06/2013 16:05:00 ::: 32 Constitution (Sterling Computers Ltd. v. M & N Publications Ltd.
[(1993) 1 SCC 445]. Similarly, the apex Court in the case of Tata Cellular v. Union of India [(1994) 6 SCC 651] has given the limitations relating to the scope of judicial review of administrative decisions. Those are (i) the modern trend points to judicial restraint in administrative action; (ii) the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made; (iii) the Court does not have the expertise to correct the administrative action. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible; (iv) the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract; (v) the Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness, but must be free from arbitrariness not affected by bias or actuated by mala fides; and (vi) quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted experience.
46. The apex Court in the case of Raunaq International Ltd. v.
::: Downloaded on - 09/06/2013 16:05:00 ::: 33I.V.R. Construction Ltd. [(1999) 1 SCC 492] has observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. The apex Court has given some of the relevant considerations. Those are: (i) the price at which the other side is willing to do the work; (ii) whether the goods or services offered are of the requisite specifications; (iii) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (iv) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (v) past experience of the tenderer, and whether he has successfully completed similar work earlier; (vi) time which will be taken to deliver the goods or services; and (vii) the ability of the tenderer to take follow-up action, rectify defects or to give post-
contract services.
47. The apex Court in the case of Assn. of Registration Plates v.
Union of India [(2005) 1 SCC 679] has expressed that Article 14 of the Constitution prohibits the Government from arbitrarily choosing a ::: Downloaded on - 09/06/2013 16:05:00 ::: 34 contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest.
48. The apex Court, after taking into consideration the above referred decisions in paragraph 22 of the judgement rendered in the case of Jagdish Mandal v. State of Orissa [(2007) 14 SCC 517] has observed thus:-
"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, ::: Downloaded on - 09/06/2013 16:05:00 ::: 35 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 tenders 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. 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 ::: Downloaded on - 09/06/2013 16:05:00 ::: 36 relevant law could have reached;
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largessee (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
49. It is in the light of the above referred decisions and the law declared by the apex Court on the subject, we need to analyse whether there has been any infirmity in the decision making process undertaken by the Technical Expert Committee and whether the decision making process was reasonable, rational and not arbitrary as well as violative of Article 14 of the Constitution.
50. In the instant case, the Expert Committee has given five reasons for rejection of the bid of the petitioners. The Committee consists of six members. Those were: (i) Dr.V. Mudkavi, Ph.D., Senior Scientist and Head, Computational and Theoretical Fluid Dynamics Division, National Aeronautical Laboratory (NAL), Bangalore (Chairman); (ii) Dr. P. ::: Downloaded on - 09/06/2013 16:05:00 ::: 37 Pradeepkumar, Ph.D., Senior Scientist and Head, Department of Atmospheric and Space Sciences (DASS), University of Pune, Pune (Member) (iii) Mr.V.K.Soni, who is a Meteorologist, India Meterological Department (IMD), Pune; (iv) Dr.P.C.S.Devara (Member); (v) Dr.J.R. Kulkarni (Member); and (vi) Dr.R.S.Maheskumar (Member-Convener).
It is the case of the respondent no.1 that the Chairman and two Members Dr.P. Pradeepkumar and Mr.V.K.Soni were not from the respondent no.1 institution. It is the case of the respondent no.1 that the Technical Expert Committee who had expertise in the field discussed the various technical issues, considered the clarifications given by the tenderors and after proper application of mind has found that the bid submitted by the petitioners was suffering from five defects and, therefore, disqualified the same.
50A. The first deficiency noticed by the Committee was that the trace gas analyzers projected by the petitioners were the same which were used during CAIPEEX phase I. The experience of the Scientists was that the instruments did not work to the satisfaction and due to which there was loss of valuable trace gas data. The Committee, in view of this deficiency, has opined that the problem of recording inaccurate trace gas data will persist in in CAIPEEX phase II programme and the clarification given by the petitioners for corrective measures in this regard for proper ::: Downloaded on - 09/06/2013 16:05:00 ::: 38 performance of such equipments were not found to be satisfactory by the Committee.
51. The case of the petitioners is that the petitioners had offered trace gas analyzers processed by manufacturers M/s.ESA from France as well as from the manufacturers API from the U.S.A. However, the respondent no.1 deliberately disqualified the petitioners on the ground that the ESA gas analyzers were used in phase I of CAIPEEX and were found to be inaccurate and, therefore, gave their opinion accordingly. The learned counsel for the petitioners, therefore, contended that the opinion expressed by the Committee in this regard is incorrect since the petitioners offered to provide the trace gas analyzer as per the specifications mentioned in the tender notice and, therefore, the tender of the petitioners ought not to have been rejected on this count.
52. According to the Technical Expert Committee, the aircraft proposed by the petitioners is Piper Cheyenne i.e. similar to the one which was used during CAIPEEX phase I. However, as per the present tender specifications, there were additional instruments i.e. SF6-gas tracer analyzer and radiation along with their power supply units required to be used and IITM's last year's experience was that there was very little space for scientists to carry out the work in the aircraft, hence additional ::: Downloaded on - 09/06/2013 16:05:00 ::: 39 instruments will reduce space available inside the aircraft offered by the petitioners and increase the weight and thereby reduce the range of the aircraft which may impact on the total crew carrying capacity of the aircraft. The Expert Committee, therefore, observed that the aircraft offered by the petitioners may not be suitable for the proposed work envisaged for CAIPEEX phase-II. The counsel for the petitioners has submitted that the petitioners had offered a detailed description of the proposed SF6 tracer, including its make, configuration and model. It is further contended that the letter dated 30.10.2009 which is annexed as Exh.`A' to the petitioners' sur-rejoinder dated 8.6.2010 addressed to Capt. Arvind Sharma, the founder Director of the petitioner-company, shows that CAIPEEX phase I programme had been successfully completed by fulfilling all the objectives and, therefore, the second reason given by the Committee that the aircraft offered by the petitioners was not suitable for CAIPEEX phase II programme is unfounded.
53. The third ground given by the Committee for rejecting the bid of the petitioners is that the sensitivity of the SF6 tracer required is in ppt range while the petitioners have quoted with ppb range, which is 1000 times less sensitive than the technical requirement of the tender. The case of the petitioners is that the petitioners had offered a detailed description of the proposed SF6 tracer, including its make and configuration which is ::: Downloaded on - 09/06/2013 16:05:00 ::: 40 in conformity with the tender condition.
54. The fourth ground given by the Committee for rejecting the tender of the petitioners is that the quoted salt seeder aircraft does not have the capability to carry 500 kg. of salt as required by IITM whereas the petitioners have submitted that the tender document provides that the aircraft should be equipped with the system of storing/spraying about 500 kgs. salt and the capacity offered by the petitioners was almost 450 kgs., which comes very close to the requirement of the respondent no.1 and, therefore, the rejection of the tender on this ground is also improper. The last ground given by the Committee for rejecting the tender of the petitioners is that as per the specific terms and conditions, the bid of the petitioners was required to contain information about: (i) cloud microphysics information from satellites; and (ii) the bidder must install IITM scientists at IITM in simulation of cloud dynamics, microphysics and seeding impacts using the latest state-of-art cloud model. The Committee has noted that the petitioners' bid did not contain the information in respect of these points and when clarification was sought from the petitioners, the petitioners informed that the same will be provided. It is the case of the petitioners that in their letter dated 2.4.2010, specific undertaking was given accepting the terms and conditions as regards microphysics information on satellite and training of ::: Downloaded on - 09/06/2013 16:05:00 ::: 41 Scientists.
55. While exercising power of judicial review, the Court is concerned primarily as to whether there has been any infirmity in the decision making process and whether the said process was reasonable, rational and not arbitrary and violative of Article 14 of the Constitution. In the instant case, the stand of the petitioners is not that the deficiencies noted by the Technical Evaluation Committee in respect of the bid of the petitioners were not the requirement as per the terms and conditions of the tender.
On the other hand, the case of the petitioners is that the explanation and clarification given by the petitioners was not properly considered by the Expert Committee. It is pertinent to note that in the absence of specific stand of the petitioners that the compliance of the specifications insisted by the respondent no.1 was not as stipulated in the conditions of the tender, would mean that the action of the respondent no.1 insisting on compliance with such specifications must be held to be consistent with the tender document. The explanation/clarification given by the petitioners in respect of each deficiency noted by the respondent no.1 whether adequate, enough to hold that the petitioners complied with those specifications as stipulated in the tender document is difficult for Court to consider for want of expertise in the field in question and it is only for the Committee which is having specific knowledge and expertise in the field ::: Downloaded on - 09/06/2013 16:05:00 ::: 42 can consider these aspects and is required to take a decision in respect of each bid submitted by the bidder in the light of the conditions of tender.
It is well-settled that this Court does not sit as a Court of appeal in respect of the decision taken by the respondent no.1 on the basis of recommendation of the Expert Committee and this Court is only concerned with as to whether there is any infirmity in the decision making process undertaken by the Committee of the respondent no.1. Since the power of judicial review is limited to ascertain whether the decision making process was reasonable and rational and does not suffer from any infirmity, the said power cannot be extended to review the decision taken by the Expert Committee on merits. In the instant case, the minutes of the meeting of the Technical Expert Committee held on 5.4.2010 shows that the deficiencies noticed by the Committee in respect of the bid of the petitioners were of highly technical nature and in the absence of specific case of the petitioners that the opinion expressed by the Committee is not consistent with the terms and conditions of the tender documents, it will not be possible for the Court to go into this aspect of the matter while exercising the power of judicial review of the administrative decisions under Article 226 of the Constitution.
56. The opinion of the Committee in respect of deficiency no.1 that the problem of recording inaccurate trace gas data will persist for this ::: Downloaded on - 09/06/2013 16:05:00 ::: 43 CAIPEEX phase II, if the same instruments are used by the petitioners which were used in CAIPEEX phase I cannot also be gone into by this Court for want of requisite technical knowledge in this regard. Similarly, the aircraft proposed by the petitioners was similar to one used during CAIPEEX phase I, will be suitable for CAIPEEX phase II programme which has to carry additional instruments, will reduce space available inside, increase weight and thereby reduce the range of the aircraft also cannot be decided by this Court for the same reason. Similar is the case of deficiency nos.3 and 4 expressed by the Committee pertaining to sensitivity of SF6 tracer TPT range as well as the requirement of capability to carry 500 kgs. salt as required by IITM. The petitioners had explained that the aircraft proposed by the petitioners has a capacity to carry 450 kgs. of salt which fulfills the requisite condition of tender cannot be decided by this Court for the same reasons. Though the petitioners have contended that the petitioners had furnished a detailed description of the essential technical and performance characteristics of the goods as required by clause 11.3 of the tender document, however, in the opinion of the Committee, it does not contain information about cloud microphysics information from satellites and in respect of the aspect which requires the bidder to install and train IITM scientists at IITM in simulation of cloud dynamics, microphysics and seeding impacts using the latest state-of-art cloud model.
::: Downloaded on - 09/06/2013 16:05:00 ::: 4457. The contract under tender pertains to highly technical and specialised experiment of cloud seeding and, therefore, only persons who understand meteorological science as well as cloud seeding science and possess expertise in the field alone would be able to consider and decide whether the instrument required to be supplied by the bidders, including the nature of aircraft were in conformity with the requisite conditions of tender. The Technical Expert Committee was the only competent body to consider this aspect and take appropriate decision in this regard by notifying the deficiencies, if any, noticed by it while evaluating the bids of the bidders. Even otherwise, while exercising power of judicial review, the Court is concerned with the decision making process of the Committee and cannot substitute the decision of the Committee by its own since it does not sit as a Court of appeal on the decision rendered by the Committee.
58. In paragraph 24 of the decision in W.B. State Electricity Board v. Patel Engineering Co. (cited supra), the apex Court has observed thus:-
"24. The controversy in this case has arisen at the threshold, it cannot be disputed that this is an international competitive bidding which postulates ::: Downloaded on - 09/06/2013 16:05:00 ::: 45 keen competition and high efficiency. The bidders have or should have assistance of technical experts.
The degree of care required in such a bidding is greater than in ordinary local bids for small works.
It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a go-
by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty.
Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder ::: Downloaded on - 09/06/2013 16:05:00 ::: 46 would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rule sis the best principle to be followed, which is also in the best public interest."
The above referred observations clearly show that the degree of care required in international competitive bidding is greater than in ordinary local bids for small work. Similarly, adherence to the instructions/conditions of tender cannot be given a go-by to avoid the vice of discrimination/arbitrariness and favouritism. The apex Court has clearly observed that where power to relax or waive a rule or a condition exists under the Rules which has to be done strictly in compliance with ::: Downloaded on - 09/06/2013 16:05:00 ::: 47 the rules. It is also well-settled that there is no departure permitted in respect of essential eligibility criteria. However, in a given case and for good reasons, some variation/relaxation in respect of non-essential conditions of tender may be permissible provided there is a specific power to grant relaxation exists. It is also well-settled that the principles applied and criteria adopted while evaluating all the bids must be one and the same and the authority cannot apply different yardstick and principles while evaluating different bids submitted by the bidders. In the instant case, the petitioners have raised the plea that the respondent no.1 while evaluating the bid of M/s.Krishi Consultants did not apply the same principles and criteria which was applied while evaluating the bid of the petitioners. Mr.Godbole, the learned counsel for the respondent no.1, has submitted that it was not obligatory on the part of the Evaluation Committee to notify the items offered and mentioned in the bid document which were consistent with the terms and conditions of the tender. The Technical Expert Committee was only required to notify the deficiencies noticed by it in respect of items which do not comply with the specifications stipulated in the tender document. It is no doubt true that the Technical Expert Committee is not expected to give opinion in respect of the items which are mentioned in the bid and are consistent with the terms and conditions of the tender. However, to avoid the vice of arbitrariness in decision making process, it is obligatory on the part of the ::: Downloaded on - 09/06/2013 16:05:00 ::: 48 Expert Committee to apply the same principles and to adopt similar criteria which is applied in case of all the bidders while evaluating their bids. In the instant case, annexure IV which is the minutes of the Technical Expert Committee held on 5.4.2010 annexed to the additional affidavit-cum-sur-rejoinder filed by the respondent no.1 shows the deficiencies noted by the Technical Expert Committee in respect of the bid of the petitioners as well as the observations made by the Committee in respect of the bid of M/s.Krishi Consultants. However, the affidavit is silent on the issue whether the Committee has applied the same principles and criteria while evaluating the bids of the petitioners. Mr.Godbole, the learned counsel for the respondent no.1, submitted that the bid of M/s.Krishi Consultants was in conformity with the terms and conditions of tender. The petitioners though alleged that M/s.Krishi Consultants has offered a sub-standard category aircraft which is used for carrying passengers whereas seeder aircraft is modified to meet the cloud seeding requirements which is offered by the petitioners. It is the case of the petitioners that modifying the standard category aircraft to suit the requirement under the tender is a time consuming process and the modified aircraft may not be as efficient as seeder aircraft which is meant for the job of cloud seeding.
59. It is not possible for this Court to decide which aircraft could be ::: Downloaded on - 09/06/2013 16:05:00 ::: 49 more efficient and effective for executing the work under the tender.
However, the Expert Committee has given reasons how the aircraft offered by the petitioners may not be suitable for the proposed CAIPEEX-II programme. It is difficult for the Court to dis-agree with the said decision of the Committee for want of requisite expertise in the said field. Similarly, the learned counsel for the petitioners has contended that the petitioners have not made any allegations of mala fides against M/s.Krishi Consultants and, therefore, M/s.Krishi Consultants is neither a necessary nor a proper party to the present petition. The petitioners have alleged that the Technical Expert Committee adopted different technical bid evaluation procedure in respect of the bid of the petitioners as well as M/s.Krishi Consultants and failed to apply the same yardstick. However, since the petitioners have not alleged any mala fides against M/s.Krishi Consultants, there is no reason for us to disagree with the decision taken by the Technical Expert Committee for rejecting the bid of the petitioners on the basis of deficiencies found in the bid of the petitioners. The Committee consisted of highly qualified persons, holding very responsible positions in the same field. Similarly, the Chairman and other two Members of the Committee are not from the respondent no.1 institution. In such situations, in the absence of specific allegations of mala fides, it is difficult to agree with the contention canvassed by the learned counsel for the petitioners in this regard.
::: Downloaded on - 09/06/2013 16:05:00 ::: 5060. In the instant case, the petitioners have questioned the decision of the Technical Expert Committee of the respondent no.1 in rejecting the technical bid of the petitioners. The petitioners have not made any allegations of mala fides against M/s.Krishi Consultants and questioned the wisdom of the Expert Committee in rejecting the technical bid of the petitioners. The petitioners in the present petition are seeking a declaration that the bid of the petitioners pertaining to stores`A' and `B' is technically qualified and direction to the respondent no.1 to accept the same. Hence, the outcome of the Writ Petition does not affect the rights of M/s.Krishi Consultants in any way. The bidder only has a right to be considered if the bid submitted is technically qualified as per the terms and conditions of the tender. It is in these circumstances that M/s.Krishi Consultants, in our view, is not a necessary party to this petition and the objection raised bay the respondent no.1 in this regard, in the circumstances of the present case, is rejected.
61. For the reasons stated hereinabove, the petition suffers from lack of merit, the same is dismissed. Interim order dated 14.5.2010 is vacated.
Civil Application No.1404 of 2010 is disposed of. Rule stands ::: Downloaded on - 09/06/2013 16:05:00 ::: 51 discharged. No order as to costs.
(D.D. SINHA, J.) (MRS.MRIDULA BHATKAR,J.) ::: Downloaded on - 09/06/2013 16:05:00 :::