Case: M/s. Sam Built Well Pvt. Ltd Vs. Deepak Builders &amp; Others

2. The present appeal involves a notice inviting tenders (NIT) dated 16th March, 2017 by which the director of the Institute of Nano Science and Technology, Mohali, invited percentage rate composite bids from eligible firms/contractors in a two bid system for construction of the Institute of Nano Science and Technology Campus at Knowledge City, Sector 81, Mohali, consisting of research, academic and administrative buildings together with hostel, residential, amenity and utility buildings. The estimated cost of the said project was Rs. 162.18 crores, with earnest money payable being Rs. 1.72 crores. The period of completion was stated to be 20 months and the last date for submission of tender was 10th April,8 of the said NIT is important and states asContractors/bidders who fulfill the following minimum criteria shall be eligible to apply. Joint ventures/consortium are not accepted.(a) Should have satisfactorily completed the works as mentioned below during the last date of submission of bids.(i) Three similar completed works each costing not less than Rs. 64.9 crores, or(ii) Two similar completed works each costing not less than Rs. 97.3 crores,(iii) One similar completed work of aggregate cost not less than Rs. 129.7 crores.Similar work shall mean work of "construction of institutional/educational buildings campus with minimum five storeys RCC framed structure building including electrical, plumbing, fire fighting, HVAC works under composite contract executed in India in a single contract.Several persons submitted their bids, including Respondent No.1, who claimed that it had done "similar work" ason ofon ofe ast hasbasement plus 5storeys RCC framede ast hasstoreys RCC framedt att hasys RCC framedut ofed onand arerk ofrk of7 andt hasbasement plus 5d meetings were conducted in March,ly Respondent No.1 submitted its tender on 7th April, 2017. 516 bidders, who initially came forward, participated in the tender process. Admittedly, a technical evaluation report dated 24th April, 2017 stated that the eligibility criteria contained in Clause 8 of the NIT was not met by Respondent No.1. This was reiterated by two other expert bodies, namely, Tata Consultancy Services and the Building Works Committee of the Institute. Respondent No.2 then addressed a letter to Respondent No.1 informing it about its ineligibility. On 3rd May, 2017, Respondent No.1 filed a Writ Petition which was dismissed by the learned Single Judge stating that "similar work", which requires to be considered under Clause 8 of the NIT, would be work which involves not onlyve blocks, but also several other buildings. Looking at the four projects, the last of which was admittedly keptn, it was found that none of the work could be said to be "similar" in nature and referring to the fact that three specialists had stated that Respondent No.1 was ineligible, the Court adopted theposture, considering the limited parameters of judicial review. However, by the impugned judgment dated 4th August, 2017, the Division Bench of the High Court allowed the appeal of Respondent No.1 and set aside the judgment of the learned Single Judge stating that though there was no malafides in the present case, the judgment of the learned Single Judge was incorrect and that, therefore, Respondent No.1 was clearly eligible. The appeal was then disposed of by directing Respondent No. 2 to consider Respondent No.1s bid, along with other eligible bids, and award the contract after assessing the bids on all permissible criteria.5. Pursuant to the said judgment, we have been informed that the tender was ultimatelyth August, 2017 to Respondent No.1, inter alia, for the reason that Respondent No.1 quoted a figure of roughly 4 to 5 crores less than that of the Appellant. Further, even though we are in December, 2017, the, admittedly, not yet left the site of construction and resultantly Respondent No.1 has not yet commenced work.

Reasoning: 9. Having heard learned counsel for both parties, it is important to set out the parameters for judicial review in cases like the present one.We have already noticed that three expert committees have scrutinized Respondent No.1s tender and found Respondent No.1 to be ineligible. The impugned judgment of the Division Bench of the High Court expressly states that no malafides are involved in the present case. Equally, while setting aside the judgment of the learned Single Judge, the Division Bench does not state that the three expert committees have arrived at a perverse conclusion. To merely set aside the judgment of the learned Single Judge and then jump to the conclusion that Respondent No.1s tender was clearly eligible, would be directly contrary to the judgments aforestated. Not having found malafides or perversity in the technical expert reports, the principle of judicial restraint kicks in, and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken. As a result, we find that the learned Single Judge was correct in his reliance on the three expert committee reports. The Division Bench, in setting aside the aforesaid judgment, has clearly gone outside the bounds of judicial review.