1 wp6152.19.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 6152 OF 2019 [ENTITY], through its authorized signatory and Power of Attorney Deepak Gaba S/o Shri Harbanslal Gaba, aged about 35 years, R/o 328/12, Jaikampura, Gumrgaon, Hairyana - 122 001. PETITIONER VERSUS 1. [ENTITY], Through its Commissioner, Nag Bhavan, Civil Lines, Nagpur - 440 001 2. BVG India Ltd., Through its Senior Executive, Mr. Parmeshwar Patil, BVG House, Premier Plaza, Pune-Mumbai Road, Chinchwad, Pune - 411 019 3. [ENTITY], Through its Director, Mr. Shiju Jacob Kallarakal - 14031404, 14th Floor Dev Corpora Building, Near Cadbury Junction, Khopat, Thane (W) - 400601. RESPONDENTS Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Senior Counsel a/w Shri [ENTITY], Additional Government Pleader for Respondent No.1. Shri [ENTITY], Advocate for Respondent No. 2. Shri [ENTITY], Advocate for Respondent No. 3. CORAM : SUNIL B. SHUKRE AND MILIND N. JADHAV, JJ. RESERVED ON: 05.09.2019. PRONOUNCED ON : 11.09.2019. Uploaded on - 13/09/2019 Downloaded on - 13/09/2019 21:40:56 2 wp6152.19.doc JUDGMENT:
[PER MILIND N. JADHAV, J.]
1. Heard. Rule. By consent of the parties, Petition heard forthwith.
2. By the present Petition, the Petitioner has challenged the technical evaluation of the Tender process and determination of the eligibility of Respondent No.2 as a successful bidder by [ENTITY] i.e. Respondent No.1, in respect of Tender pertaining to "Door to Door Collection and Transportation of Solid Waste of Nagpur City etc". for a 10 year period. The Tender was published on 30.05.2019 and was in respect of two packages viz. Package No.1 pertaining to Zones 1 to 5 and Package No.2 pertaining to Zones 6 to 10 in the City of Nagpur. The sale of documents started on 30.05.2019 and ended on 16.07.2019 with an extended period upto 30.07.2019. The technical bids were opened on 26.08.2019. In all, seven bids were received from:
i) [ENTITY] (Petitioner herein);
ii) AG Enviro Infra Projects Pvt. Ltd (Respondent No. 3 herein);
iii) BVG India Ltd. (Respondent No. 2 herein);
iv) Centre for Development Communication; v) Kanak Resources Management Ltd.; vi) Swayambhu Transport and wp6152.19.doc vii) Urbaser India Ltd.
Pursuant to the opening of technical bids, the bids of parties at sr. nos. iv) to vii) herein above came to be rejected whereas bids of parties at sr. nos. i) to iii) were accepted and evaluated as per eligibility criteria. On 27.08.2019, Respondent No. 1 Corporation opened the 'Financial bids' wherein after the array of parties was as under :-
Sr. Name of Technical Amount/Financial Bid Bid No. Bidder Score Rank 1 BVG India Ltd. 77 1800.00 L1 2 AG Enviro 83 2045.00 L2 Infra Projects Pvt. Ltd.
3 A2Z Infra 71 2295.00 L3 Service Ltd.
3. Shri [ENTITY], appearing on behalf of the Petitioner submitted that one of the essential eligibility criteria prescribed in the Tender document is that the bidder had to have a minimum experience of collection and transportation of Municipal solid waste, Door to Door collection along with secondary transportation for a minimum capacity of 300 Metric Tones Per Day (MTPD) in a single work order in India for a minimum one million population and in the case of ongoing work, the Commercial Operation Date (COD) was to be for a minimum one year period prior to the month in which the bids were invited and if the said work was completed in wp6152.19.doc the past then, it ought not to be more than 3 years prior to the month in which the bids were invited. The thrust of the Petition is based upon compliance and consideration of the aforesaid condition by the Respondent No.1-Corporation while determining the eligibility of Respondent No.2 i.e. [ENTITY] as one of the successful bidders. He submitted that Respondent No.2 violated the aforesaid condition of eligibility and thus the bid of Respondent No. 2 deserved to be rejected/dismissed. He submitted that pursuant to certain enquiry made by the Petitioner regarding eligibility and qualification of Respondent No. 2, it came to the knowledge of the Petitioner that the experience certificate dated 26.07.2019 (@ Annexure-IV to the Petition) submitted by Respondent No.2 was not in order and stood invalidated for the purpose of eligibility. He submitted that the Petitioner received information from Jaipur Municipal Corporation pertaining to the experience certificate submitted by Respondent No. 2 that the said certificate was invalidated/cancelled and was thereafter re-tendered. The certificate dated 26.07.2019 read thus:-
"This is certify that Nagar Nigam Jaipur has awarded work order to M/s. BVG India Ltd. For Door to Door collection, Segregation & Transportation of Municipal Solid Waste (C&T) of Jaipur City Under the guidlines of Swachh Bharat Mission (SBM) Package-I by work order no. F29(1941)/En./Project/F.T. No. 10056031/NNJ/2017/380 wp6152.19.doc dated 17/03/2017. The project has commenced on 8th May 2017 and the completion of the project ended on 16/03/2024.
The work is under progress and as given below as per the year 2017-
Package Waste Tipping fees Population Quantity (Rs.) per tones Covered (as per 2011) I 471 TPD 1670.00 10,71,527
4. Shri [ENTITY] submitted that the work in respect of the above certificate/tender awarded to the Respondent No.2 was infact never awarded and the said tender was cancelled and the work never began at any point of time. For substantiating the above submission he referred to and relied upon e-Tender Notice-NIT No. 5/95, dated 27.06.2019 (@ Annexure-V to the Petition) issued by Jaipur Municipal Corporation in respect of invitation of online tenders from experienced, technically and financially sound reputed Contractors who were registered with Central Government Department, State Government Department and Local Bodies etc. fulfilling eligibility criteria as prescribed by the Tender document published on 01.07.2019. He submitted that this was a fresh Tender issued pursuant to cancellation of the earlier Tender/Certificate dated 26.07.2019 issued by Jaipur Municipal Corporation in respect of the same work. He, therefore, submitted that the technical wp6152.19.doc evaluation process of Respondent No.2 on the basis of tender certificate dated 26.07.2019 as done by Respondent No. 1 ought not to have been done and the Respondent No.2 could not have been awarded 20 marks in respect of "criteria of number of years of experience". He submitted that even in respect of the second certificate of experience granted by Pimpri Chinchwad Municipal Corporation to Respondent No.2, the Respondent No.2 did not deserve to have got the benefit of the said project because the said Tender was allotted to M/s. BVG Kshitij Waste Management Services Pvt. Ltd., a sister concern of Respondent No.2. He submitted that Respondent No.2 also did not posses net worth of Rs. 30 crores which was one of the essential Tender condition, but the same was not pressed by the Petitioner. He submitted that the minimum eligibility criteria prescribed by the Tender document was to obtain 70 marks out of 100 marks in order to be eligible for opening of the financial bids. He submitted that Respondent No.2 was awarded 77 marks out of 100 mark in the technical process, but however if the above two submissions were accepted, then in consonance with the Tender conditions the net score of Respondent No.2 would fall below the minimum eligibility criteria of 70% and thus the Respondent No.2 would be ousted from the bidding process at the technical evaluation stage. He laid emphasis and thrust on the experience certificate dated 08.05.2017 submitted by wp6152.19.doc Respondent No.2, inter alia, arguing that the work therein had commenced on 08.05.2017 and the date of completion was 16.03.2024. But according to him, since the said Tender was cancelled and had been re-tendered on 27.06.2019, the Respondent No.2 could not claim benefit of the said work experience and thus the Tender/bid of the Respondent No.2 ought to have been disqualified and rejected even before the financial bis were opened.
5. Shri [ENTITY] submitted that in so far as the Petitioner's case was concerned, the Petitioner had secured 71 marks out of 100 marks in the technical evaluation stage on the basis of its past experience and financial capability. He however submitted that the Petitioner was entitled to be awarded 81 marks out of 100 marks instead of 71 marks out of 100 marks which were awarded to the Petitioner. He submitted that in respect of the number of projects completed/carried out by the Petitioner as well as number of years of experience of the Petitioner, the Petitioner had submitted performance certificates in respect of two projects namely :-
i) Performance certificate dated 10.07.2019 issued by Municipal Corporation, Ludhiana for a contract period of 25 years commencing from November-2011 in respect of population of 60.80 lakhs (approximate) for daily tonnage of 1150 MT (@ Annexure-VII to the Petition) and wp6152.19.doc
ii) Performance certificate dated 29.07.2019 issued by South Delhi Municipal Corporation in respect of integrated collection and transportation of Municipal Solid Waste of City, sweeping of West Zone of South Delhi Municipal Corporation for a contract period of 8 years beginning from 10.07.2018 in respect of population of 17.08 lakhs (approximate) and daily tonnage of 89.25 MT (@ Annexure VIII to the Petition).
6. Shri [ENTITY] submited that on the basis of the aforesaid two certificates, in the technical evaluation, the Petitioner ought to have been awarded 20 marks instead of 15 marks (i) for number of projects and (ii) number of years of experience, each, thereby increasing the total number of awarded marks to the Petitioner from 71 marks to 81 marks out of 100 marks. He submitted that on the basis of the above submissions, the Petitioner was better qualified in terms of eligibility as well as experience i.e. eligibility criteria/condition of the Tender document as compared to the Respondent No.2.
7. Shri [ENTITY] finally submitted that the Respondent No.1-Corporation committed a gross error in evaluating the technical qualification and eligibility criteria pertaining to the experience of Respondent No.2, and based on the reasons advanced by the Petitioner, the Respondent No.2 could never had qualified wp6152.19.doc beyond the technical bidding process. He submitted that the evaluation of the technical bids by Respondent No.1-Corporation was arbitrary, irrational, non-reasonable and violative of Petitioner's fundamental rights. The entire thrust of his submission was based on satisfaction of the eligibility condition submitted under the technical bid by Respondent No. 2. He submitted that according to Tender conditions, the work of Package-1 and Package-2 could only be awarded to one successful tenderer which essentially meant that the along with Respondent No.3, the Respondent No.2 could be allotted/awarded either Package-1 or Package-2.
8. The Petition came to be filed on 29.08.2019. The advocate for the Petitioner made an urgent application before this Court on 03.09.2019 and on that date, notice was issued for final disposal at admission stage to the Respondents which was made returnable on 05.09.2019. This was because, the Court was informed that the Standing Committee of the Respondent No.1- Corporation was to meet for taking further steps in respect of the said tender/works.
9. Learned Senior Counsel Shri [ENTITY] appearing on behalf of Respondent No.1-Corporation submitted point by point rebuttal to the submissions made by the Petitioner. He submitted that due to paucity of time and notice period, Respondent No.1 wp6152.19.doc could not file its affidavit in reply to the Petition. He submitted that due to the above reasons, certain documents which were extremely relevant to the case in hand were required to be brought on record, in order to dispel and refute the claim of the Petitioner. He, therefore sought leave of this Hon'ble Court to place on record 13 documents (total 18 pages) in respect of consideration of the eligibility of Respondent No.2 issued by Jaipur Municipal Corporation and Pimpri Chinchwad Municipal Corporation, which were essentially considered by Respondent No.1-Corporation for technical evaluation of Respondent No.2. He submitted that the entire Petition and submissions made by the Petitioner were mis- conceived and insufficient. He submitted that merely on the basis of two documents (@ Annexure IV & V to the Petition), the Petitioner has levelled serious charges against Respondent No.1 for determining the eligibility and entitlement of Respondent No.2, without verifying the details thereof. He submitted that the 13 documents which are placed on record would prove that the Respondent No. 2 was not only adequately qualified and eligible but would also show that the present Petition was filed on the basis of inadequate documents without verification of the same. After perusing the said documents, we granted leave to Respondent No.1 to place the said documents on record, as we feel that the said wp6152.19.doc documents infact prove the eligibility of Respondent No.2 and refute the case of the Petitioner in toto.
10. Shri [ENTITY] took us through each of the aforesaid 13 documents, inter alia, pertaining to the works awarded to Respondent No. 2 by Jaipur Municipal Corporation which were submitted to the Corporation as work experience of Respondent No.2. He submitted that Jaipur Municipal Corporation had awarded three separate independent packages/works to Respondent No.2 as under:
(i) The first package was in respect of work order No. F29(1941)/En/Project/F.T. No. 10056031/NNJ /2017/380, dated 17.03.2017 in respect of waste collection of 471 TPD, tipping fees Rs. 1670 per tons, for population of 10,71,527 (as on 2011) for three zones viz. Amer (5 wards), Hawa Mahal West (6 wards) and Vidhyadhar Nagar Zone (21 wards).
(ii) The second package was in respect of work order No. F29(1941)/En/Project/F.T. No. 10056032/NNJ/ 2017/ 381, dated 17.03.2017 for waste collection of 397 TPD, tipping fees Rs. 1650.00 per tons for population of 9,01,111 (as per 2011) for two zones viz. Civil Lines (16 wards) and Mansarovar (11 wards).
(iii) The third package was in respect of work order no. F29(1941)/En/Project/F.T. No. 10056034/NNJ/2017/ 382, dated wp6152.19.doc 17.03.2017 for waste collection of 472 TPD, tipping fees Rs. 1970 per tons for population of 10,73,525 (as on 2011) for three zones viz. Hawa Mahal East (11 wards), Moti Dungri (9 wards) and Sanganer (12 wards).
We have taken the 13 documents on record and the same are marked as 'X-1' to 'X-13' for identification because Respondent No.1-Corporation has not filed its affidavit in reply. We also feel that the said documents go to the root of the matter and satisfy the Tender (eligibility) conditions issued by Respondent No.1 thereby entitling Respondent No.2 to qualify the Technical evaluation stage bid process by obtaining more than 70 marks out of 100 marks. The 13 documents submitted and placed on record by Respondent No.1 are as under :-
(i) Certificate dated 26.07.2019 issued by Jaipur Municipal Corporation in respect of work awarded to M/s. BVG India Ltd. For Package-I.
(ii) Work order No. 380 dated 17.03.2017 issued by Jaipur Municipal Corporation to M/s. BVG India Pvt. Ltd in respect of the above certificate for Package-I.
(iii) Certificate dated 26.07.2019 issued by Jaipur Municipal Corporation in respect of work awarded to M/s. BVG India Ltd. for [SECTION].
wp6152.19.doc
(iv) Work order No. 381 dated 17.03.2017 issued by Jaipur Municipal Corporation to M/s. BVG India Pvt. Ltd in respect of the above certificate for [SECTION].
(v) Certificate No. 382 dated 26.07.2019 issued by Jaipur Municipal Corporation in respect of work awarded to M/s. BVG India Ltd. for [SECTION]I.
(vi) Work order dated 17.03.2017 issued by Jaipur Municipal Corporation to M/s. BVG India Pvt. Ltd in respect of the above certificate for [SECTION]I.
(vii) Composite Certificate dated 25.05.2018 issued by Executive Engineer (P), Jaipur Municipal Corporation in respect of the aforesaid three packages.
(viii) Composite Certificate dated 19.06.2019 issued by Commissioner, Nagar Nigam Jaipur in respect of all the aforesaid three packages giving all details.
(ix) Certificate dated 16.10.2017 issued by Pimpri Chinchwad Municipal Corporation to M/s. BVG Kshitij Waste Management Services Pvt. Ltd
(x) List of shareholders of M/s. BVG Kshitij Waste Management Services Pvt. Ltd
wp6152.19.doc
(xi) Notice forming part of standalone financial statements of M/s. BVG India Ltd
(xii) Certificate dated 13.12.2018 by ANRK & Associates LLP, Chartered Accountants certifying the net worth of M/s. BVG India Ltd. As on 30.03.2018 at Rs. 7,409.38 Millions.
(xiii) Criteria for past experience and financial capability along with copy of Balance Sheet of M/s. BVG India Ltd. as on 31.03.2019.
11. Shri [ENTITY] submitted that all the aforesaid three packages were independent of each other and for different zones/works and in respect of the conditions mentioned in the tender document in the instant case, qualified as eligible in so far as the Respondent No.2 was concerned. He submitted that Jaipur Municipal Corporation had not awarded any singular contract to the Respondent No.2 as contended by the Petitioner. On the contrary, three separate and independent contracts were awarded to Respondent No.2 by Jaipur Municipal Corporation. He submitted that the technical score sheet of Respondent No.2 therefore clearly referred to Package-I and [SECTION]I in respect of contracts handled along with Pimpri Chinchwad Municipal Corporation's contract considering that the minimum eligibility for population cover was one million in the present case. He submitted that in this view of the wp6152.19.doc matter, the eligibility condition and criteria for entitlement which were in respect of two specific projects/contracts was fulfilled by Respondent No.2 in the present case. He fairly submitted that that in so far as [SECTION] of Jaipur Municipal Corporation's contract was concerned, the same was awarded in respect of population below one million and therefore did not qualify as eligible. He further submitted that, on the strength of the shareholding pattern of M/s. BVG Kshitij Waste Management Services Private Ltd., the Respondent No.2 held more than 74% shares and was the majority share holder of the said Company which was chosen to be eligible in respect of handling Door to Door garbage collection and transportation by Pimpri Chinchwad Municipal Corporation in respect of 478 MTPD covering a total of 99 sq. Kilometres and 2.5 lakhs households. Hence, he submitted that Package-I contract and [SECTION]I contract awarded by Jaipur Municipal Corporation contract, qualified as eligible in the case of Respondent No.2.
12. Shri [ENTITY] made submissions on another facet of the eligibility criteria/condition which is required to be noted herein. He submitted that as per tender conditions, the financial bids of only those bidders who had obtained minimum eligibility of 70% i.e. 70 marks out of 100 marks in the technical proposal were mandated to be opened for consideration and thereafter the wp6152.19.doc financial bids of all the technically qualified bidders with latest financial quotes were mandated to be considered as preferred bidders for discussion and award of contract. We have perused the Tender condition Annexure-V (b) "Financial proposal". He submitted that both the technical bids and financial bids had to be evaluated and compared independent of each other. He submitted that only those bidders who had qualified through the technical bid/proposal were eligible to be considered for opening of financial bids. He submitted that once it was established that the Petitioner, Respondent No.2 and Respondent No.3 had obtained more than 70% marks in the technical proposal, then in that case the next step was to open the financial bids of all the three bidders irrespective of the technical score obtained/received/awarded to each of the three bidders. He therefore submitted that in order to qualify for opening of the financial bids, the minimum eligibility of 70% marks in the technical proposal was the first necessary step and in the present case, the Petitioner, the Respondent No.2 and the Respondent No.3 having qualified in the technical proposal by obtaining 70% marks were, therefore, pitted against each other insofar as financial bids are concerned. He submitted that markings in respect of technical proposal and evaluation as per eligibility criteria submitted by each of the tenderers was done accurately and there was no ambiguity or mis-reading or mis-calculation in respect of the same. He finally wp6152.19.doc submitted that the thrust of the Petitioner's submission on the basis of e-Tender NIT05-95 dated 27.06.2019 was a completely fallacious submission as much as it deserved to be rejected on the face of record. He submitted that the said document at Annexure-V presented by the Petitioner was in respect of a completely fresh and altogether new Tender published by Jaipur Municipal Corporation on 01.07.2019 and was nowhere concerned with Package-I, [SECTION] and [SECTION]I tender issued by Jaipur Municipal Corporation to the Respondent No.2 earlier perusal of the said document also shows that the said Tender document dated 27.06.2019 was in respect of a new online Tender issued by Jaipur Municipal Corporation and there is no reference of Package-I, [SECTION] and [SECTION]I as was sought to be arued by learned counsel for the Petitioner.
Shri [ENTITY] appearing on behalf of Respondent No.2 adopted the submissions advanced by Shri [ENTITY] learned Senior Counsel appearing on behalf of Respondent No. 1. Shri [ENTITY] appearing on behalf of Respondent No.3 did not advance any submissions.
13. Shri [ENTITY] learned counsel for the Petitioner placed reliance upon the decision of the Hon'ble Apex Court in the case of [PRECEDENT] and anr.
wp6152.19.doc reported in (2016) 16 SCC 818 and submitted that in the event if the decision-making process suffered from malafides or is intended to favour someone then in that case interference of the Court is permissible if the decision is arbitrary or irrational. He stated that the work stated in the certificate of experience dated 26.07.2019 given by the Respondent No.2 was cancelled by Jaipur Municipal Corporation and the Respondent No.2 was issued a fresh notice for the same work on 29.06.2019. However, after perusing the documents placed on record by Respondent No.1-Corporation certifying the various certificates issued in respect of Package-I, [SECTION] and [SECTION]I by Jaipur Municipal Corporation and the certificate issued by Pimpri Chinchwad Municipal Corporation in favour of Respondent No.2 the submissions advanced by the Petitioner do not stand to test. Hence, the submission of mala fides advanced by the Petitioner deserve to be dismissed and the same cannot be countenanced.
14. Shri [ENTITY] further referred to and relied upon the decision of the Apex Court in the case of [PRECEDENT] and invited our attention to paragraphs 9 to 11 of the said judgment. He placed emphasis upon [SECTION] as appearing in the said judgment which related to past experience of wp6152.19.doc the tenderer and whether he has successfully completed similar work earlier and attempted to distinguish the facts of the present case. The said paragraphs 9, 10 & 11 read thus:
"9. 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. These would be :
(1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications;
(3) 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;
(4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services;
and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services.
Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, wp6152.19.doc in a given case, an element of public law or public interest involved even in such a commercial transaction.
10. What are these elements of public interest ? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods. e.g. A delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.
11. When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court Would ultimately effect in public money by deciding the dispute in favour of one wp6152.19.doc tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide. the court should not intervene under [SECTION] in disputes between two rival tenderers.
We do not find merit in the submission advanced by the the Petitioner. The Respondent No.1-Municipal Corporation has placed on record adequate documents in respect of the details of Package-I, [SECTION] and [SECTION]I and Pimpri Chinchwad Municipal Corporation which were submitted by Respondent No.2 for evaluation of its technical proposal. The 13 documents cited (supra) speak for themselves. Even while considering the technical proposal of Respondent No.2 the Respondent No.1-Corporation has eliminated [SECTION] because the said tender was in respect of population of less than 10 lakhs. The learned Senior Counsel for Respondent No.1 fairly submitted the assuming whilst denying that work experience was required to be submitted in respect of two qualified projects as per the tender conditions, then in that respect even if [SECTION] and the certificate issued by the Pimpri Chinchwad Corporation are ignored, then in veiw of the eligibility of Package No. I and Package No. III, the Respondent No. 2's technical proposal was correctly evaluated and the marks awarded to Respondent No.2 i.e. 81 marks out of 100 were correctly given. We agree with the submissions made by Respondent No.1. He wp6152.19.doc submitted that there was no mala fide and hence, the marks in the technical proposal in respect of Petitioner, Respondent No.1 and Respondent No.2 were correctly awarded on the basis of documentary evidence available with the Respondent No. 1- Corporation. We do not find any perversity in the decision-making process arrived at by Respondent No. 1-Corporation for the purpose of technical evaluation/proposal in the present case. We find that the decision has been arrived at by following a thorough valid process and it does not call for any interference.
15. In the case Afcons Infrastructure Ltd. cited (supra) in paragraph 12 thereof it has been held thus while referring to the case of [PRECEDENT] :
"12. In [PRECEDENT] it was held that the constitutional courts are concerned with the decision making process. [PRECEDENT] went a step further and held that a decision is challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in [PRECEDENT] as mentioned in Central Coal Fields".
wp6152.19.doc
13. In other words, a mere disagreement with decision making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of malafides days, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision".
14. We must reiterate the words of caution that this court has stated right from the time when [PRECEDENT] was decided almost 40 years ago, namely, that the words used in the tendered documents must be given meaning and their necessary significance. ".
16. In the above context, after a minute scrutiny of the tender document, we find that all eligibility criteria in the tender document, inter alia, pertaining to technical eligibility and Annexure -5 i.e. Revised technical evaluation and marking system guidelines for evaluating technical proposal and for evaluating the financial proposal of the technically qualified bidders have been thoroughly followed and applied correctly by Respondent No.1- Corporation in respect of the Petitioner, the Respondent No. 2 & the Respondent No. 3. We find that one of the eligibility criteria for qualification of the bidder in the technical proposal was wp6152.19.doc in respect of having minimum experience in the case of on- going work from the date of commercial operation (COD) for atleast one year prior to the month in which the bids were invited. If this condition is to be strictly applied to the facts of the completion certificate and COD for the project dated 26.04.2019 submitted by the Petitioner at Annexure-IX of the Petition, the said certificate would not qualify for acceptance as the commercial operation date (COD) of the said project stated therein was in effect from 10.07.2018 and thus it would strictly not satisfy the aforementioned tender condition. However, we refrain from entering into that domain considering that we have answered the substantive challenge raised by the Petitioner in the Petition in the negative and we find no merit in the grounds pleaded in the Petition.
17. In the case of [PRECEDENT] the principal enunciated in Raunak International Limited (supra) was reiterated in the following terms : (SCC pp623- 24, para 7) "7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the wp6152.19.doc decision of this Court in [PRECEDENT]; [PRECEDENT], ;
[PRECEDENT], , [PRECEDENT], ;. Ramniklal N. Bhutta v. State of Maharashtra, and [PRECEDENT], . 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 are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under [SECTION] with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public wp6152.19.doc interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene". (emphasis supplied)
18. In the case of [PRECEDENT] Bharat Petroleum Corporation Limited, reported in [PRECEDENT] the nature and scope of judicial review in Government contracts was reiterated and it was held that Courts were required to be vigilant against agitation of private disputes under writ jurisdiction when there is no improper exercise of power on part of public authority concerned. In paragraph 19, the Apex Court concluded as under :
"19. We have felt it necessary to reiterate the need of caution sounded by this Court in the decisions referred to hereinabove in view of the serious consequences that the entertainment of a writ petition in contractual matters, unless justified by public interest, can entail. Delay in the judicial process that seems to have become inevitable could work in different ways. Deprivation of the benefit of a service or facility to the public; escalating costs burdening the public exchequer and abandonment of half completed works and projects due to the ground realities in a fast changing economic/market scenario are some of the pitfalls that may occur".
In the present case we find that the Petition has been driven more for the purpose of ousting the eligibility of wp6152.19.doc Respondent No.2. Based on the totality of facts presented before us we unhesitatingly come to the conclusion that in the instant case the evaluation of the technical proposal by Respondent No.1-Corporation on the basis of the eligibility conditions in the tender document was correctly done in respect of all three successful bidders, viz. Petitioner, Respondent No. 2 and Respondent No. 3.
19. We find that the principal of law relating to award of a contract by the State, enunciated and settled in the case of [PRECEDENT] and [PRECEDENT] have been followed in the subsequent judgments. In the case of [PRECEDENT] while considering the scope of judicial review in matters relating to contracts, the Hon'ble Apex Court has clinically held that exercise of power of judicial review is called for only if the approach is arbitrary or malafide or the procedure has been adopted to favour someone. We however, do not find the same in the instant case and therefore reject the submissions of the Petitioner. Further in the case of Municipal Corporation, Ujain and anr. Vs. BVG wp6152.19.doc India Limited. (Respondent No.2 in the instant case) reported in [PRECEDENT], the Apex Court has held that while considering the scope of judicial review in matters relating to contract it is held that the same is restricted to decision- making process but not the decision itself. It is held that the High Court cannot act as Appellate Court to review tender evaluation and to set aside the award of tender if valid process is followed. We find that in absence of any specific mala fides with respect to non-following of the essential conditions of tender and considering the record placed before us, Respondent No.1-Corporation has acted within its authority and there is no violation of the tender conditions.
20. In view of the aforesaid reasons, we find no merit in the Petition and the Petition is dismissed with no orders as to costs. Rule is discharged.
JUDGE JUDGE [ENTITY] G.