IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12530 of 2008 Hospitech Management Consultants Pvt. Ltd. having its office at UG-64, World Trade Centre, Barakhamba Avenue, Connaught Place, New Delhi- 11001 through its Project Director, Major General Ashim Chakravrti. ……. Petitioner. VERSUS 1. The State of Bihar through the Secretary, Building Construction Department, Government of Bihar, Patna. 2. The Secretary, Building Construction Department, Government of Bihar, Patna. 3. The Superintending Engineer, Advance Planning Circle, Building Construction Department, Government of Bihar, Patna. 4. The Executive Engineer, Building Construction Department, Government of Bihar, Patna. 5. M/s Arch & Design, B1/37, Hauz Khas, New Delhi. …….. Respondents. ----------- Counsels for the Petitioner : Mr. Jitendra Singh, Sr. Adv. Mr. Rajiv Kumar Singh, Adv. Mr. Kamal Kishore Singh, Adv. Counsel for the Respondent : AAG-10 Nos. 1 to 4 Counsel for Respondent No. 5: Mr. Ram Balak Mahto, Sr. Adv. -------------------- 04 22.12.2008 With the object of setting up a big Medical College- cum-Hospital at Pawapuri in the district of Nalanda as per guidelines of Medical Council of India, the State was first required to select and appoint a consultant for rendering services for the construction of the said project. Accordingly, the Advance Planning Circle of the Building Construction Department, Government of Bihar issued a notice for notifying the proposal for consultancy services. However, new the expression may be in example non-technical terms, this is a notice inviting tender for consultancy services. The said notice is appended as Annexure-2 to the writ petition. Annexure-2 read with the detail terms of the tender, Annexure-3 would show that tender papers (proposals as referred to in the documents) were to be filed in separate sealed envelops. First with regard to eligibility, the second with regard to 2 technical bids and third with regard to financial bids. In the notice, as well as the terms of tender it was clearly stipulated that the first part of the proposal shall be opened on 16.07.2008, itself which at 2 P.M. on that day was the last date for filing the tenders. Learned counsel for the petitioner asserts and it is not disputed that on the same day i.e. 16.07.2008 at 3 P.M. all envelops of all tenderers with regard to eligibility were opened in presence of all the tenderers. Only petitioner and two others including Respondent No. 5 were found to be eligible, thus finding petitioner waited for the next stage, having waited for nearly a month. On the 12th of August 2008, they enquired from the Executive Engineer of the Circle concerned regarding the said tender. They were asked to be told that the technical and the financial bids had already been opened and evaluated and final decision had already been taken on the 10th of August 2008, a Sunday. It is against the process adopted that the writ petition was filed. When the writ petition earlier came up notices were issued to Respondent No. 5, who had been selected and at that stage though no counter affidavit had been filed. Learned counsel for the State had got instructions but could not disclose the date of the manner finalization was done, as such an interim order of restrain was passed restraining State from issuing any work order in respect of Respondent No. 5. A counter affidavit has since been filed by the Executive Engineer, Advance Planning No. 1 on behalf of the Secretary of the Building Construction Department, Government of Bihar and the Superintending Engineer of the Advance Plannning Circle of the said 3 department. In the said counter affidavit, it is admitted that the eligibility envelops were opened on the date, as alleged. It is admitted that six tenders were filed out of which only three were found to be eligible. Then, in paragraph 10, it is stated that the technical bids (technical proposals) of the three eligible competing consultants were opened on 17.07.2008. Subsequently, on 04.08.2008 an evaluation committee was constituted and the technical proposals (technical bid) were evaluated by the said committee on 04.08.2008. It is stated in the counter affidavit that none of three competing consultants scored the minimum qualifying marks of 75 in the technical bid. The said evaluation committee then decided to relax the minimum qualifying marks to 50 in accordance with Clause 7.1.3, which authorizes them to make changes in the eligibility and the technical criterias, if so required. On reduction of minimum qualifying marks all three were declared technically qualified. Then, financial bids were opened on 08.08.2008 and were evaluated on 11.08.2008 by the same committee. On evaluation, Respondent No. 5 was found to be the highest composite scoring bidder and accordingly he alone was invited for negotiation. He was called for negotiation on 25.08.2008, but by then writ petition had already been filed. Respondent No. 5 has also filed a counter affidavit stating that the procedure for evaluation and granting marks was all disclosed in the invitation for proposals and they had been scrupulously complied with. Once the eligibility criteria were settled the marking was mechanical, this did not vitiate the process. Learned counsel for the petitioner submits that he is not 4 challenging the decision taken, he has not invited this Court to sit over the decision taken or to reevaluate the bid, his challenge is to the decision making process. He submits that once the eligibile bids were opened in front of all tenderers and it was declared that three persons succeeded then surely the three tenderers were entitled to know the date on which the technical bid and the financial bid would be opened, so that they could be present as bids must be opened in public. Here admittedly, once the three eligible bids were opened the technical and the financial bids were then opened behind back of any party and by whom is also not disclosed. Because, it is consequent to the opening of the technical bid that the committee was constituted. In simple words, it is submitted that such an indoor procedure erodes public confidence in the process employed and is against the concept of transparency in public administration. These two make the whole process adopted for evaluation to be arbitrary and against the concept of fairness. On the other hand, Mr.Ram Balak Mahto, learned senior counsel appearing on behalf of the private-respondent submits with aid of the case of Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and others since reported in AIR 1999 SC 393, where the matter concerns the conflict of interest between two competing contractors for a government contract, Courts ordinarily should not interfere. The State does not dispute the facts noted above and rely on Clause 2.1 of the letter of invitation and state that in case petitioner had any misgivings he should have sought a clarification as to the date when the matter was to be considered for opening of technical or financial bids. 5 Heard the parties and with their consent the writ petition is being disposed of at the stage of admission itself. With expanding governmental responsibility and function of government has to get involve in contracts of various natures which may or may not be in the domain of its sovereign power or its functions. Now by series of judgments of the Supreme Court and various High Courts it is established that even in contractual matters government is not relieved of its obligation under Article 14 of the Constitution. Article 14 embodies the principles of fairness of decision and fairness of the decision making process apart from other facets with which we are not concerned. Here, what is challenged is not the decision but the decision making process. It is submitted that the process as adopted does not inspire public confidence and is contrary to transparency, which is now a concept completely married with public administration. In the process as adopted and noticed above, it would be seen that no one except the Officers whose identity not even disclosed to this Court knows what the bids were. It was not opened in presence of any of the parties. No dates were fixed, no one was notified and merely because evaluation was mechanical one must accept the procedure and results cannot be accepted. Petitioner has rightly submitted that right from the Central Vigilance Commission, the National Judicial Academy all have been recommending consistently that all stages of opening of bid paper should be publicly done with notice to party so that the authenticity of bid documents can never be disputed. Otherwise, except for saying that the documents processed are the same as the documents 6 filed, there is no way of verifying the authenticity of documents as filed. They can be replaced at any stage. This erodes public confidence. The process loses transparency. All the process is done behind the close doors of the Secretariat, these are what have been deprecated. These are what are known as clock and dagger approach. These processes are not State secrets but they are public documents for public good in public domain and should be done publicly. Thus, procedure as adopted being contrary to Article 14 cannot be countenanced and the whole process has to be set at naught. Such process is unknown to law and if allowed to continue would give rise to innumerable mal practices limitless in imagination. The process as employed is vitiated as a matter of law being mala fide in law and thus the selection as a consequence thereof stands vitiated. So far as the decision as relied on behalf of Respondent No. 5 is concerned, in my view, it has no application to the facts of the case. The writ petition is not dispute inter se between two competing contractors. It is a dispute relating to the process of decision making and not the decision itself. The decision has no application to the facts of the present case. Hence, the writ petition is allowed and the selection process is held to be arbitrary, consequentially vitiating the selection itself. Trivedi/ ( Navaniti Prasad Singh, J.)