WP(C) 457/2007 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY JUDGMENT AND ORDER In challenge is the decision of the Coal India Limited (hereinafter for short as ’CIL’) to award the work of transferring coal in the railway wagons from its st ock at Tirap and Tikak railway siding to the respondent No. 6, as contained in t he letters dated 16.01.2007 to the said effect. 2. I have heard Mr. AB Choudhury, Senior Advocate assisted by Mr. H Hoque Advocate for the petitioner, Mr. MZ Ahmed, Senior Advocate for CIL and Mr . PK Goswami, Senior Advocate assisted by Mr. S Sharma, Advocate for respondent No. 6. 3. As the edificial facts and the legal issues, are common, both th ese petitions were heard analogously and are being disposed of by this common or der. A brief outline of the facts leading to the instant proceedings needs to be sket ched for better comprehension of the rival contentions. The petitioner, a regis tered partnership firm, claims to be engaged in transfer of coal into railway wa gons under the CIL for 18 years and had been settled with the same work for the term 2003-2004. The North Eastern Coal Fields, Coal India Limited, Margarita is sued NIT dated 25.09.2002, inviting tenders for the work transfer of coal into railway wagons from stock stacked at railway siding at different location in loo se condition . The locations were identified as Tirap and Tikak siding. While the period of works was 24 months, the estimated value of the work corresponding to the two aforesaid sidings was Rs. 2,25,00,000/- each. Approximate quantity of coal to be transferred was mentioned to be 5,00,000/- metric ton each year. The petitioner and the respondent No. 6 along with others submitted their tender s for the work related to Tikak and Tirap siding. The rates quoted by the petit ioner and respondent No. 6, were as hereunder: M/s. Associate Enterprise (Petitioner)  Rs. 17.45 per ton Respondent No. 6  Rs. 13.50 per ton While contending that in rate below Rs. 17.45 was unworkable, the petitioner has asserted that the respondent No. 6, has no experience in the business of transf er of coal into railway wagons, he not having undertaken such or similar work at any point of time. According to the petitioner, therefore, in face of Clause 3 .2 (C) of the Instructions to Bidders (hereafter also referred to as the ’ITB’), he was ineligible to be considered. On the other hand, having regard to its pa st experience in executing such works and its financial soundness, it was the mo st suitable tenderer. The above notwithstanding, the General Manager, North Eas tern Coal Fields (Coal India Ltd.), District  Tinsukia, by the impugned communi cation dated 16.01.2007, intimated the respondent No. 6 that his bid had been ac cepted for the works upto 30.04.2007, pending a final decision to award the same in whole for the stipulated period mentioned in the NIT. The decision has been impugned to be illegal and arbitrary being prompted by extraneous consideration s. Private negotiation with the respondent No. 6, to the exclusion of the petit ioner and other tenderers has also been alleged. The respondent No. 6, had ente red through a caveat. The learned counsel for the CIL has produced the records to endorse the decision assailed. 4. Mr. Choudhury, has assertively urged that the respondent No. 6 b eing deficient in experience, in the touchstone of Clause 3.2 (b) of the ITB, he was disqualified to be considered for the settlement. As he does not possess a ny experience whatsoever, in the work of loading of coal into railway wagons, hi s selection has been in departure from the aforementioned clause of the ITB. According to the learned Senior counsel, the temporary nature of the settl ement as conveyed by the impugned communication is a clear index of the want of confidence of the respondent authorities in him. The arrangement sought to be r esorted to, was yield of a private negotiation with him, he urged. No such cond itional award of the work being comprehensible in the NIT, the impugned decision being opposed thereto, is non est in law. The acceptance of the respondent’s t ender not being absolute and unqualified in terms of the section 7 of the Contra ct Act, 1872 as well, the impugned settlement is null and void. Mr. Choudhury, stood by the pleaded assertions of mala fide and extraneous considerations. To buttress his arguments, he placed reliance on the decision of the Apex Court in AIR 1979 SC 1628, (RAMANA DAYARAM SHETTY Vs. THE INTERNATIONAL AIRPORT AUTHORITY OF INDIA & ORS.) and of this Court in 2002 (3) GLT 463 (S.K. RAI (M/S.) Vs. UNI ON OF INDIA & ORS.) and 2002 (3) GLT 653 (D.S. TRADING (M/S.) Vs. PADUM GOGOI & ORS.) 5. In reply Mr. Ahmed, maintained that the respondent No. 6’s tende rs having been found to be responsive to the tender stipulations and rate the lo west yet workable, he was rightly awarded the contract. Referring to the record s, he contended that as the tenderers noticeably had reduced their rates compare d to those of the previous year, the initial work term has been limited to 30th of April, 2007. 6. Mr. Goswami, while endorsing the above, argued with reference to Clause 3.2 (b) and (c) together with 3.3 and the Forms Of Bid And Qualificatio n Information that the intending tenderer to be eligible was not required to be experienced in the execution of the work of transferring coal exclusively and t hat accomplishment of works of transferring any material in loose condition into wagons, was sufficient. The work in essence being to handle the labour force f or and organized transition of the material lying in loose condition from the si ding to the railway wagons, the respondent No. 6, A Class 1 contractor, being ad apted to such jobs, evidently satisfied the requirement of experience as conceiv ed of in the NIT. Besides, the respondent No. 6, being admittedly the lowest te nderer and the impugned decision apparently being preceded by cost price analysi s, as visualized in Clause 26 of the ITB, the challenge thereto, is clearly unte nable. The limited duration of the initial settlement presumably being to test the efficiency of the respondent No. 6, a new entrant in the arena was logical a nd did not militate against the validity of his selection, he urged. 7. I have extended due consideration to the rival assertions. The fundamental essentialities to inform a valid administrative decision in the matt ers of distribution of State larges, have been authoritatively propounded by the Apex Court in RAMANA DAYARAM SHETTY (Supra). It ruled that an executive author ity must be rigorously held to the standards by which it professes its action to be judged and any deviation therefrom, would be at the pain of invalidation the reof. While, underlining that such an imperative would act as a check against a n exercise of arbitrary power by the executive authority, it emphasised that a g overnmental action in such matters has to be in accord with the pristine tenet o f fairness enshrined in Article 14 of the Constitution of India. 8. This Court in S.K. RAI (M/S.) (Supra), disapproved the approach of the respondent authority therein in relaxing the essential norms and awarding the contract to the Respondent No. 6, solely on the consideration that its quot ed rate was the lowest. The facts in D.S. TRADING (M/S.) (Supra), reveal that t he expert committee and the settling authority therein, had entertained defectiv e tenders to the exclusion of the valid ones. The decision making process was, therefore, interfered with being vitiated by arbitrariness and lack of transpare ncy. 9. Before evaluating the competing arguments, it is incumbent to el icit the true purport of the Clauses in the tender notice relied upon by the par ties. It is apparent from the tender documents that a tenderer was required to submit his paper in sealed covers in two parts i.e. Part  I and Part  II. Whe reas, Part  I related to the technical bid, Part  II concerned the price bid. The CIL, reserved to itself the discretion not to accept the lowest tender and the right to reject any or all the tenders without assigning any reason and furt her to distribute the work and allot the work to more than one tenderer. Clause 1.2 of the ITB, mentioned that the successful bidder could expect to be assigne d the work for the period specified in the tender document. No commitment as su ch, therefore, is decipherable to award the works to the successful bidder for t he entire term. The two heads on which informations and documents were required to be furnished by the bidders and relied upon by the petitioner deserve to be extracted : 3.2 If the employer has not undertaken pre-qualification of potential bidders, all bidders shall include the following information and documents with their bid s (copies of all documentary evidences are to be duly authenticated by the tende rs/constituted attorney of the tenderer with full signature and seal. All signe d declarations are to be made in the tenderer’s letterhead). & & & & & & & & & & & & & & & & & & & & & & b. Experience of having successfully executed similar works during last seven y ears. c. Experience in works of similar nature and size for each of the last five year s, and details of work under way or contractually committed; and the name and ad dress of clients who may be contacted for further information on those contracts . A tenderer to qualify for the award of the contract, was required under Clause 3 .3 of the ITB to have experience of successful execution of works of similar nat ure valued 65% of the annualized value of the work put to tender in any year dur ing last 7 (seven) years ending last day of the month previous to the one in whi ch bid applications were invited. The word executed works of similar nature , have been illustrated to be transfer of any material in loose condition into wag ons. Clause 26 stipulated the requirement of evaluation and comparison of the b ids determined to be substantially responsive to the tender conditions. The pro cedure, therefor, was also laid down therein. Under Cause 26.4, the CIL was emp owered to require the bidder to produce total price analysis for any or all item s of the Bill of Quantities, to demonstrate the internal consistency of those pr ices with the methods and schedule proposed, if his bid appeared to be seriously unbalanced in relation to the Engineer’s estimate of the cost of the work to be performed. The power to accept, negotiate or reject a bid, as well as to cance l the bidding process at any time prior to the award of the contract was clearly reserved to the CIL. 10. The tenderers were required to submit their bids in the forms pr escribed both for Part  I and Part  II. In clause 1.4 of the form for Part  I, a proforma was provided to furnish the relevant informations pertaining to ex perience in execution of work of similar nature in the last 7 (seven) years. Sl . No. 9 of the said proforma indicated the commodities. It appears therefrom th at the CIL recognized for the purpose of experience of a prospective bidder, the work of transportation of sand, OB/Matti/Middling/Washery rejects etc., besides coal for the purpose of the tender process. 11. A perusal of the tender submitted by the respondent No. 6 along with the documents supportive of his experience in execution of similar nature o f works, disclose that he had been allotted the work of loading and carriage of materials manually and construction for Improvement of Riding Quality Programme from Km 651/0 to 671/0 of NH under Dibrugarh Division, Dibrugarh on 13.12.2002 under the Chief Engineer, Public Works Department, NH Works Assam. The value o f the work was Rs. 5,38,91,977/-, which he completed on 12.07.2003. In course o f the said work boulders, broken stone, sand gravel were transported. In addition thereto, he was also allotted an identical work under the said proje ct on 01.03.2006, the value whereof, was Rs. 5,25,07,103/-, which he completed i n December, 2006. Certificates of satisfactory completion of the aforementioned works, were also submitted by him along with his tender. 12. A cumulative reading of the tender conditions noted hereinabove, proclaims that the essential condition of eligibility for a bidder to qualify f or the work tender, vis-à-vis experience, was the requirement of successful exec ution of works of similar nature i.e. transfer of any material in loose conditio n into railway wagons, value whereof, ought to be 65% of the annualized value of the work tendered in any year during last 7 (seven) years ending on the last da y of the month previous to one in which the bid applications were invited. This view is reinforced by the prescribed Form Of Bidding And Qualification Informa tion for Part  I, whereunder, the essential informations to the above effect, were to be furnished in the proforma under Clause 1.4 thereof. It further trans pires that the experience of a prospective tenderer in transportation work invol ving articles other than coal, namely, sand, OB/Matti/Middling/Washery rejects e tc. was cognizable. The tender submitted by the respondent No. 6, in the above premise, therefore, does not appear to be non-responsive to the criteria of expe rience as stipulated in the aforementioned clauses of the ITB. 13. The records reveal that the Tender Committee constituted for the purpose, in its initial evaluation between 14th to 18th November, 2006 of the t enders detected deficiencies therein, vis-à-vis the petitioner, the respondent N o. 6 and some others. Accordingly, all the tenderers were requested to submit t he requisite documents by 07.12.2006. Having found the technical bid of the ten derers responsive, the price bids were opened. The respondent No. 6, was found to have quoted the lowest rate of Rs. 13.50 per ton for both the sidings. Where as, M/s. North East Enterprise quoted a rate of 14.45 per ton, the petitioner’s offer was Rs. 17.85 per ton. The Tender Committee assessed the respondent No. 6 to be the lowest tenderer for both the sidings. It was of the view that the re spondent No. 6, also fulfilled the eligibility criteria and thus recommended acc eptance of his rate for awarding the works to him. The proposal was accepted on principle and thereafter, the respondent No. 6 was required to submit the total breakup of his rate, which he accordingly did. His rate was further tested on various other norms including minimum wages of unskilled work in Assam and minim um workload of 6 to 7 metric ton per head per shift of 8 hours and was appraised to be reasonable and workable as per the analysis furnished by him. Having reg ard to the value of the work, the issue was ultimately placed with the Chairman North Eastern Coal Fields, who on 15.01.2007, accorded his final approval. Whil e, taking the decision, the said authority noticing the drop in the rates quoted by the bidders as a whole considered it appropriate to watch the performance of the awardee for a period of 3 months and, therefore, limited the period for the present to be upto 30.04.2007 to be extended for the full term based on a revie w. 14. On a threadbare scrutiny of the records, no semblance of extrane ous consideration or unholy alliance, as alleged could be discerned. As referred to hereinabove, documents evidencing the experience of respondent No. 6, as sti pulated in the ITB and in the prescribed form in Part  I of the tender document s are available. The Tender Committee and other authorities at different levels appeared to have been convinced that the respondent No. 6, was competent to exe cute the works and has the derived experience. Further, the rate quoted by him was the lowest. These factors cannot be dismissed as irrelevant. The rate quot ed by the respondent No. 6, as the records disclose, had been analyzed and teste d at different stages and levels. The decision to award the work has been at hi s quoted rate. The opportunity granted to him to furnish the components constit uting his rate cannot be construed as a private negotiation with him, the recomm endation of the Tender Committee in his favour, in the meantime, having been acc epted on principle. The limited term initially granted to him, in the above fac ts and circumstances, principally to watch his performance, is not mutilative of his assessed suitability. As a matter of fact, the records do not disclose any doubt or reservation with regard to his competence. The respondent No. 6, havi ng been selected to administer the works, in my view, the decision to limit the period of the term in praesenti cannot invalidate the process leading thereto. 15. The judicially evolved norms, as enunciated in the authorities c ited at the Bar, are no assistance to the petitioner in the attending facts. As it is some leeway has to be conceded to the administrative authorities in takin g decisions on such issues, however, within the permissible limits. The authori ties concerned are the best assessors of their requirements and services proffer ed. No contravention of any essential precept governing the distribution of Sta te largesse is perceptible. The apprehension of inflation of rates later in the process of execution of the works appears to be hypothetical. The condition of review of performance of the respondent No. 6, adequately takes care of that as pect as well. The decision making process, does not appear to be afflicted by a ny error of law or procedure or any non-germane consideration. Having regard to the constricted scope of judicial review in the face of the materials available on records, the challenge thus cannot be upheld. The petitions being devoid of merit fails. No costs.