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5. It is the contention of Shri M.R.Bhatt, learned Senior Counsel appearing for the petitioners that the respondent Corporation with pre-determined mind namely, to exclude the petitioner from participating in the tender process, has disqualified the petitioner at the nascent stage namely, pre-bid stage. Shri Bhatt, learned Senior Counsel has submitted that what is under challenge mainly is the decision making process by the authority which, according to him smacks, mala fides, favoritism and as such that being so, judicial review deserves to be undertaken in this peculiar background of fact. He would submit that one of the essential terms of the tender is that respondent authority was required to display the result of the technical evaluation on its web portal along with the reasons for rejecting the bid, if any, vide Clause 2.24 of the tender conditions and impugned email dated 8.3.2022 (Annexure-A) does not disclose the reasons for disqualifying the petitioner and on that C/SCA/5992/2022 ORDER DATED: 21/04/2022 ground itself, the decision making process of the respondent has to be held as flawed and consequently further tender process has to be set aside. It is contended that reasons are integral part of principles of natural justice and in view of settled position of law, the reasons cannot be supplied by way of an affidavit or the subsequent reasons cannot be supplemented by affidavit, it should reflect in the order itself. He would also contend that tender floated was for construction of a "Sports Complex" at Naranpura and by assigning the reasons that petitioner does not meet the criteria fixed especially with regard to the condition that the bidders should have completed minimum one project of Sports Complex in last 7 years, petitioner has been disqualified which is an erroneous decision and same is taken with a mala-fide intention and it is a colourable exercise of power inasmuch as tender conditions were modified by issuing a Corrigendum by virtue of which, a clause was included that bidders were also entitled to participate in the bid in the event they having completed a project having infrastructure facilities for indoor / outdoor sports C/SCA/5992/2022 ORDER DATED: 21/04/2022 of a competition standard and this criteria was met by the petitioner and in proof of the same, documents were also furnished and the queries raised by the respondent had been answered which has also been accepted by the Technical Member of the respondent authority but same has not been accepted by the Financial Member that too without assigning proper reasons and hence, he contends that decision making process is flawed or improper. It is contended that petitioners also have submitted relevant experience certificate which establishes the expertise of petitioner required for the work to be undertaken and has placed reliance on specific document indicating that similar work has been undertaken by petitioners at Aatapi Wonderland in Vadodara as a development of theme Park at Ajwa, Vadodara and by referring to these documents, Shri Bhatt, learned Senior Counsel has contended that since petitioners have fulfilled the prescribed eligibility criteria, there is hardly any justification for authority to disqualify the petitioners from the tender process.

19. Similarly, in Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272, this Court stated as follows:

"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance C/SCA/5992/2022 ORDER DATED: 21/04/2022 from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint.

32. Further, we found from the assertion of authority's stand that original tender conditions which were amended in terms of amendments issued by the authority in that criteria of technical capacity the petitioners are not matching, as found by the authority. The queries which have been raised during the process appears to have been met with by the authority and the C/SCA/5992/2022 ORDER DATED: 21/04/2022 very conduct of raising such queries itself is indicative of the fact that petitioners were quite aware about their situation in respect of technical capacity. The authority appears to have examined the issue of technical capacity of petitioners since sole reliance is based upon Aatapi Wonderland project and the said project appears to have been examined by the authority in the form of queries, raised during the process and the conduct of the petitioners of having not produced at relevant point of time before the respondent the "RFQ cum RPF" documents of the Theme project as mentioned in paragraph 7.27 of affidavit-in- reply is indicative of the fact that petitioners were aware of the fact that they were not technically sound or qualified for the project. When the work is of highly specialized in nature, it is for the authority to examine and expect certain standard of work to meet with technical viability especially when the authority would be spending huge amount of money to create an international standard infrastructure and as such it is well within their domain to insist only highly qualified bidders who can meet with the project requirement would be qualified. When the entire decision making process is based upon proper application of mind and upon proper examination of relevant C/SCA/5992/2022 ORDER DATED: 21/04/2022 documents including the queries which cropped up during the process, we see no reasons to disbelieve the stand of authority that entire process is undertaken in a transparent and fair manner and we find that the technical experts have evaluated all the documents and have taken a conscious decision of this commercial project and we are satisfied that the decision making process is not at fault in any manner.

33. In the light of aforesaid situation even a comparison which has been made also apparently reflects that it is ill- founded since the tender inviting authority has considered the basic work requirement of constructions of Sports Complex and as such in the absence of any mala fides, we are not inclined to act as an appellate authority upon the conscious decision of respondent authority to substitute our views. Further from the assertion of authority's stand, it has undertaken a preliminary evaluation and test of responsiveness of all 4 bidders, who were found to be responsive and later on, the technical evaluation of bids which were undertaken in which 3 out of 4 bids were found to have technically qualified and the authority has undertaken the preliminary evaluation as well as technical evaluation of all 4 bidders and technical consultant and financial consultant have C/SCA/5992/2022 ORDER DATED: 21/04/2022 also examined the issue and after having carried out the entire process before the conscious decision is taken. Hence, we are of the considered view that decision making process appears to be just and proper. Additionally, we found that even the authority has also examined that the work completion certificate was also not issued by competent officer in respect of work undertaken by petitioners to indicate their experience and further all these issues and recommendations have been examined by as many as 12 high ranking officers and the recommendations have been considered from 05.03.2022 to 08.03.2022 and all have concurrently opted and opined to disqualify the petitioners for want of technical credentials and as such, the decision taken against the petitioners does not appear to be unjust or improper or suffering from the vice of any non application of mind. Following are the officials, who had examined the recommendations:-