1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.41 OF 2010 Coastal Marine Construction & Engineering Limited, 1st floor, Haria’s Dream Park, `A’ Wing, Mira-Bhayander Road, Mira Road (East), Mumbai—401 107. : Petitioner V/s. 1. Oil & Natural Gas Corporation Limited, Engineering Services (Offshore), 4th floor, 11 High Sion-Bandra Link Road, Sion (West), Mumbai—400 017. 2. Union of India, having their office at Aayakar Bhavan, New Marine Lines, Churchgate, Mumbai—400 020. : Respondents .... Mr.Atul Rajyadhyaksha, Senior Advocate, i/b. Ashwin Shankar for the petitioner. Mr.R.A.Dada, Senior Advocate, with Ms Snehal Paranjpe, Mr.Zubair Dada, Mr.Jayendra Kapadia and Mr.O.Mohandas i/b. Little & Co., for respondent no.1. .... 2 CORAM : J.N.PATEL & B.R. GAVAI, JJ. Date of Reserving ) : 29.01.2010. the Judgement. ) Date of Pronouncing) : 18.02.2010. the Judgement. ) JUDGEMENT (Per B.R.Gavai, J.) Though this Writ Petition has been filed seeking various reliefs, including the ones, directing the respondents to correct the terms of the Bid Evaluation Criteria, injuncting the respondents from rejecting the Technical Bid submitted by the petitioner, an injunction restraining the respondents from opening the Price Bids of various bidders and also an injunction restraining the respondents from proceeding with the award of the contract, the petitioner has restricted the claim in the petition only to the decision of the respondents in holding the petitioner to be technically disqualified for award of the contract in question. 2. The respondent no.1 had invited tenders for hiring of services for geophysical survey and geotechnical surveys in Vashishtha, S1 & Manik fields in deep water locations of East Coast of India. The main condition of the tender document around which the dispute in the present 3 petition revolves is as under:- “A) Technical Criteria The following vital technical conditions should be strictly complied: 1.0 Eligibility and experience of the bidder: 1.1(a)i) The bidder by himself should have minimum two years experience as on opening date of tender on the following- ii) The Bidder should have executed at least one number of contracts of following nature in last ten years-- For Part-I: Geophysical Survey a) Bathymetry. b) Sea Bed Survey c) Magnetometer Survey d) Sub bottom profiler (seismic) Sparker/Boomer In deep water minimum 850 Mtrs. or above. For Part II: Geo Technical Investigation Collection & Analysis of cores in deep water minimum 850 Mtrs. or above. 1.1(b) In case the bidder is an Indian company/ Indian Joint venture company, the Indian company/ Indian Joint venture company or its technical colla- borator/joint venture partner should meet the criteria laid down above. 1.1(c) Or bidder should be a 100% subsidiary company of the parent company which itself meets the experience and financial capability criteria as stipulated in the BEC. 4 1.2 In case the bidder is a consortium of companies, the following requirement should be satisfied by the bidder: a) The members of the consortium collectively should satisfy the minimum experience requirement as per para 2.1(a) above.” 3. Though, according to the petitioner, since in the notice inviting tenders there is a provision regarding pre-bid conference wherein exceptions/deviations, if any, to Tender Terms, Conditions & Specifications were to be sorted out, the petitioner has perused the matter insofar as the requirement of executing the work in water having minimum depth of 850 mtrs. is concerned and, accordingly, a prayer to that effect was made in the petition. However, since the petitioner has submitted its bid after entering into a Technical Collaboration Agreement with Williamson & Associates, USA, and Carmacoring S.r.l, Italy, the petitioner has not agitated its grievance regarding the validity of the said condition and has restricted the claim in the present petition only insofar as their grievance regarding not finding the petitioner’s collaborators’ technical experience sufficient enough to satisfy the condition regarding technical qualification. 4. We have heard Mr.Rajyadhyaksha, the learned senior counsel appearing on behalf of the petitioner, and Mr.Dada, the learned senior 5 counsel appearing on behalf of the respondent no.1 at length. 5. Mr.Rajyadhyaksha, the learned counsel appearing on behalf of the petitioner, submits that though voluminous documents were submitted by the petitioner in support of the experience and eligibility of their collaborators, the said documents are not taken into consideration on a flimsy and unviable grounds. He submits that even according to the respondents, the petitioner could have independently submitted its bid for part of the work i.e. Geophysical Survey or Geo Technical Investigation independently. He submits that insofar as Part I of the work i.e. Geophysical Survey is concerned, in response to the query made by the respondent no.1, the petitioner was required to submit the completion certificate against contract no.144695 between Tyco Telecommunications (US) Inc. and Williamson & Associates Inc. or work order/contract, report/completion certificate against any other project listed in the bid document and executed by the bidder or his technical collaborator, to conform with Bid Evaluation Criterion (BEC) clause 2.1(a)(i) of Part I. He submitted that in response to the said query, the petitioner had submitted following documents:- “i. Work Completion certificate issued by TYCO Telecommunication (US) INC having their 6 address at 412 Mount Kemble Avenue, Morrisstown, NJ 07960 which is placed in Annexure 2 to Petitioners clarification letter referred to above. ii. Copy of the report for the Manus Basin Geo- physical Survey for Placer Dome Asia Pte Ltd. Portion of report has been high lighted for the sake of convenience to show the name of Williamson & Associates, Equipments used and to show water depth wherever necessary which is placed in Annexure-3 of Petitioners clarification letter referred to above. iii. Copy of an article written by US Geological Survey personal which describes a deep water survey completed by Williamson in 1990. The article clearly states that Williamson completed the survey and it also states that it is based on a USGS report. The copy of article report is annexed hereto and marked Annexure-4 to Petitioners clarification letter referred to above. iv. A list of survey containing the contracts details executed in deep water. The contract details in blue are the contracts executed in deep water as stated in the cover email dated 11th December 2009. Copy of both the lists attached, together with forwarding email message, hereto and mark Annexure-5 to 7 Petitioners clarification letter referred to above.” Mr.Rajyadhyaksha submitted that a perusal of the aforesaid documents would reveal that the petitioner squarely satisfies the criteria laid down as per the Bid Evaluation Criteria clause 2.1(a)(i) and (ii) or 2.1(b). 6. Insofar as Part II of the work i.e. Geo Technical Investigation is concerned, it is submitted that the petitioner had entered into collaboration with Ms/.Carmacoring srl, Italy, and following documents were submitted by the petitioner to establish that the said M/s.Carmacoring complied with the eligibility criteria:- 1. Project for Impresub a) Carmacoring Company Profile mentions that Carmacoring carried out the geotechnical survey in the year 2006. b) Collaboration Agreement between Car.Ma and Impresub. c) Daily Report of the Project dated 13.4.2006. d) Certificate dated 9.5.2006 from Impresub. e) Carmacoring Report of the Geotechnical 8 Survey carried out. 2. Project for ISMAR a) Carmacoring Company Profile mentioning that Carmacoring carried out the geological survey in the year 2008. b) Report of the Project. c) Certificate dated 30.11.2009 from ISMAR. 3. Project for Gas S.r.l. a) Certificate dated 5.10.2007 issued by the Managing Director of Gas s.r.l. establishing that Carmacoring carried out coring. The learned counsel submits that the aforesaid documents would clearly establish that the petitioner’s collaborator M/s.Carmacoring S.r.l. has possessed the necessary qualification. He submits that refusal to take into consideration the aforesaid documents has resulted in arbitrariness thereby vitiating action of the respondents in holding the petitioner to be disqualified. 7. Mr.Rajyadhyaksha further submitted that though initially the 9 petitioner was found to be technically qualified, subsequently, with ulterior motive, the petitioner has been held to be disqualified. 8. An attempt has been made on behalf of the petitioner to submit that the petitioner who was already executing some works for the respondent-Corporation, had differences with one Ashok Sharma, who is an Officer in the Corporation and that the decision to hold the petitioner disqualified is at the instance of the said Sharma. It is further submitted that there was an integrity clause in the tender document and as per the integrity clause, the respondent-Corporation cannot disclose the details submitted to it, to other bidders. It is further submitted that one of the competitors of the petitioner, viz., TDI Brooks has been supplied secrete information by somebody from the Corporation. It is submitted that TDI Brooks has written a letter dated 20.11.2009 to the respondent- Corporation and only after such a letter was written, the matter was re- evaluated to hold that the petitioner is disqualified. 9. The learned counsel relied on the judgement of the apex Court in Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. [(2007) 8 SCC 1] in support of the submission that the doctrine of “level playing field” is an important doctrine and that equally placed bidders are required to be allowed to bid so as to subserve the larger 10 public interest. 10. Mr.Dada, the learned senior counsel appearing on behalf of the respondent no.1, on the contrary, submits that the documents which were relied upon by the petitioner in support of the technical qualification show that the experience of the petitioner’s collaborators has been found to be not in conformity with the requirements of the respondents. He submits that the documents were not of such a nature which would establish beyond doubt that the petitioner’s collaborators had two years’ experience as on the opening date of the tender and that they had executed at least one contract of the nature mentioned in the tender document. It is submitted that the respondents by applying the similar standards had evaluated the documents submitted by each of the bidders and after careful evaluation thereof by the Tender Evaluation Committee which consisted of senior Officers of the respondent-Corporation, it was found that the documents submitted did not satisfy the requirements of the technical qualification. The learned counsel submits that this Court is not expected to interfere with the conditions mentioned in the tender inviting notice. In support of this submission, the learned counsel relied on the judgement of the apex Court in Nagar Nigam v. Al Faheem Meat Exports (P) Ltd. [(2006) 13 SCC 382]. The learned counsel further submitted that unless the respondents come to a subjective satisfaction 11 that the works in question were satisfactorily completed, on the basis of the documents submitted by the party, it is well within its rights to hold that the party has not satisfied the condition regrading technical qualification. Reliance is placed in this respect on the judgement of the apex Court in Electrical Mfg. Co. Ltd. v. Power Grid Corpn. of India Ltd. [(2009) 4 SCC 87]. 11. Insofar as the allegation regarding Ashok Sharma is concerned, the learned counsel submitted that neither Ashok Sharma has been made a party-respondent nor are their any specific allegations attributed to him in the petition. He, therefore, submitted that in the absence of such pleadings, it will not be permissible for this Court to go into the allegations in that respect. Reliance is placed on the judgement of the apex Court in Chandra Prakash Singh v. Chairman, P.G. Bank (2008 (3) Scale 289). Insofar as the allegation regarding the TDI Brooks and Fugro is concerned, it is submitted that the information regrading the technical collaborators of the petitioner was very much available on their web site and, as such, the letter written by the said TDI Brooks was on the basis of the information received on the web site of the petitioner’s collaborators. It is, therefore, submitted that the allegation in this respect are without substance. The learned counsel further submitted that this Court is concerned with the decision making process and not the ultimate decision 12 and unless it is found that the decision making process is vitiated on any of the grounds on which judicial review of an administrative action is permissible, no inference would be warranted by this Court. Reliance is placed, in this respect, on the judgement of the apex Court in the case of Tata Cellular v. Union of India [(1994) 6 SCC 651]. 12. At the outset, we may observe that insofar as the allegations made by the petitioner regarding the impugned action being at the behest of Ashok Sharma and the same being made to favour TDI Brooks is concerned, it will not be permissible for this Court to go into the said allegations. The apex Court in Chandra Prakash Singh’s case (supra) has observed thus:- “15. In State of Punjab v. V.K. Khanna’s case (supra), this Court held that the concept of fairness in administrative action has been the subject-matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the Court and no strait-jacket formula can be evolved therefore. Further it is stated that as a 13 matter of fact, fairness is synonymous with reasonableness and on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed – it is the appreciation of this common man’s perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not. Similarly, the existence of mala fide intent or biased attitude cannot be put on a strait-jacket formula but depends upon facts and circumstances of each case. Further, it is said that whereas fairness is synonymous with reasonableness – bias stands included within the attributes and broader purview of the word “malice” which in common acceptation means and implies “spite” or “ill will”. Mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether, in fact, there was a bias or a mala fide move which resulted in the miscarriage 14 of justice. It is also held that the test of bias is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there exists a real danger of bias, administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise. 16. In Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal and Ors.’s case (supra), this Court dealing with the question of mala fide exercise of power, held as under: “Allegations of mala fide are serious in nature and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on 15 record, the Court would not make “fishing” or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts. Moreover, the burden of proving mala fide is on the person leveling such allegations and the burden is “very heavy.” In the present case, except alleging that the policy was altered by the Government to extend the benefit to IGL, no material whatsoever was placed on record by the appellant. It is, therefore, not possible to hold that the impugned action was mala fide or malicious.” 13. In the present case, it can clearly be seen that though the petitioner had number of opportunities, the petitioner has not impleaded said Ashok Sharma as party-respondent. Even otherwise, apart from making bald allegations, no particular allegation supported by any cogent material has been placed on record by the petitioner in this respect. In the absence of any such specific allegations supported by cogent evidence being brought on record and such party being made party-respondent, it 16 will not be permissible for this Court to go into the said allegations. In any case, from the material placed on record, we find that said Ashok Sharma was not a member of the Tender Committee and the said Committee consisted of the following three senior Officers:- “1. Shri P.K. Dalal, GM(M), Head Marine Survey & Offctdg. HOW. 2. Shri A.K. Srinivasan, GM (F&A). 3. Shri A.K.Tewari, GM (MM)-Offctdg.Head MM.” 14. Insofar as the allegations regarding the the secret information being supplied to M/s.TDI Brooks is concerned, we find that the allegation in this respect is also without any substance. From the material on record which is annexed along with the affidavits filed by the respondents, it is clear that the information regarding the technical collaborators of the petitioner is very much available on the web site of the collaborators. The submission on behalf of the respondents, in this respects, that the information regarding the collaborators of the petitioner being received by the said TDI Brooks from the web site of the said collaborators, therefore, appears to be of substance. In that view of the matter, we are unable to accept the contention of the petitioner in this respect. 17 15. While examining the merits of the petitioner’s case, we will have to remind ourselves that while judicially reviewing an administrative action, we are concerned with the decision making process of the administrative authority and not the ultimate decision. In the case of Tata Cellular (supra), the apex Court has observed thus:- “77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can 18 be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii)Irrationality, namely, Wednesbury unreason- ableness. (iii) Procedural impropriety.” After considering the various pronouncements of the apex Court on the issue, the apex Court has deduced the principles in paragraph 94, which are as under:- “94. The principles deducible from the above are: (1)The modern trend points to judicial restraint in administrative action. (2)The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3)The court does not have the expertise to correct the administrative decision. 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. (4)The terms of the invitation to tender cannot 19 be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5)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 (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6)Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 16. We will have to, therefore, consider as to whether the action of the respondents is valid or not within the limited para-meters that are available, while reviewing the decision making process of the respondent- authority. 20 17. The limited scope, therefore, is as to whether the action of the respondents is vitiated by illegality, irrationality or impropriety. In this background, we will have to examine the reasons given by the respondent no.1-Corporation while coming to the conclusion that the documents supplied by the petitioner do not satisfy the requirement of the technical qualification required for the work. 18. Insofar as the corporate description of M/s.Williamson and Associates is concerned, the authority has found that the said document merely gives the company’s perspective of its work without any supporting documentation. It has been found by the respondents that the said document did not establish that the said M/s.Williamson and Associates had successfully completed the type of work which was required to qualify for the tender in question. Insofar as the document pertaining to contract no.144695-TPE dated 8.10.2008 with Tyco Telecommunications dated 8.10.2008 is concerned, the petitioner has submitted a survey report and completion certificate dated 31.3.2009. However, the authority has found that the said work does not meet the requirement of the criterion of two years’ experience as required under the bid document. Insofar as the reports submitted by the petitioner of Williamson & Associates dated 18.5.2005, it was not taken into 21 consideration on the ground that the said report was the document prepared by Williamson & Associates themselves and there was no corroboration from the clients of Williamson & Associates regarding the said work being satisfactorily completed by Williamson & Associates. The report of the U.S. Geological Survey which was relied upon by the petitioner was not taken into consideration as the said report was last modified on 4.4.1996 and, as such, it fell beyond the period of ten years as required under clause 2.1(a)(i). The respondent-authority has found that the petitioner has failed to produce any document in the nature of contract, work order and completion certificate from the clients of the said Williamson & Associates in support of their claim that they had experience as per the requirement of the tender document. As such, the respondent-authority has found that the petitioner had failed to establish that the petitioner was qualified insofar as Part I work i.e. Geophysical Survey. 19. Insofar as Part II i.e. Geo Technical Investigation is concerned, upon perusal of the documents submitted by the petitioner regarding the experience of M/s.Carmacoring S.r.I. working with ISMAR, it was found that the work done by M/s.Carmacoring was merely supplying two technicians and instruments to ISMAR. It was further found that the work related to ISMAR does not fall within the requirement of two years’ 22 experience requirement of BEC. Insofar as the Collaboration Agreement is concerned, it was found that M/s.Carmacoring were mere suppliers of equipment that was used in the project Makassar Strait in Indonesia. Insofar as the letter produced by the petitioner thanking Car. Ma of Angelo Magagnoli, it was found by the authority that the said letter does not bear out the nature of work done by Car.Ma and the authority has further found that if the said letter is read with the Collaboration Agreement, the inference that could be drawn would be that it was in the context of supplies of equipment made by Car.Ma. Insofar as the Internal Report prepared by M/s.Carmacoring is concerned, it was found by the authority that this document is only an Internal Report and does not establish any experience of the category required by the BEC. Insofar as the company profile of