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2007 (9) TMI 409 - SC - Companies Lawwhether the criteria of objectivity stand satisfied in the present case? Held that - Appeal allowed. Set aside the impugned judgment of the High Court & hold that REL/HDEC (Consortium) was erroneously excluded from the second stage of bidding process. There is a mix-up of two concepts here. The concept of non-compliance of financial criteria and the impact in future years on cash flow. As stated the very purpose of cash flow reporting is to find out the ability of HDEC to generate cash flow in future and if an important method of cash flow reporting is kept out, without any reason, then the decision to exclude REL/HDEC, is arbitrary, whimsical and unreasonable. In our view, for non-consideration of the Reconciliation Method, under cash flow reporting system, the impugned decision-making process stood vitiated.
Issues Involved:
1. Compliance with Pre-Qualification (PQ) criteria. 2. Interpretation of "Net Cash Profit" (NCP) and its calculation. 3. Validity of financial statements submitted. 4. Evaluation process and decision-making by MSRDC. 5. Judicial review and principles of fairness and transparency. Detailed Analysis: 1. Compliance with Pre-Qualification (PQ) Criteria: The case revolves around the compliance with the PQ criteria stipulated by MSRDC for the Mumbai Trans Harbour Link (MTHL) project. The consortium of REL and HDEC was excluded from the second stage of bidding on the grounds of not meeting the financial criteria, specifically the net cash profit (NCP) requirement of Rs. 200 crores as per clause 7.2-2 of the PQ document. The consortium submitted financial statements for the years 2001, 2002, and 2003, which were within the stipulated timeframe, but MSRDC's consultants argued that provisions for bad debts should be treated as cash expenses, thus disqualifying the consortium. 2. Interpretation of "Net Cash Profit" (NCP) and Its Calculation: The consortium argued that non-cash expenses, such as provisions for bad debts, should be added back to the net profit to calculate the NCP. The definition of NCP in the PQ document was "PAT (profit after tax) + depreciation + amortization, not in the form of cash transaction." The consortium's financial statements, audited by KPMG, showed that adding back non-cash expenses would meet the NCP criteria. However, MSRDC's consultants contended that provisions for bad debts, though non-cash expenses, would have a future cash impact and should be treated as cash expenses. 3. Validity of Financial Statements Submitted: The consortium initially submitted financial statements for the years ending 31-12-2001, 31-12-2002, and 31-12-2003. Later, they provided audited accounts for the year ending 31-12-2004 before the extended validity of their offer expired. MSRDC's consultants rejected these accounts, arguing that they constituted subsequent information submitted after the cut-off date of 10-1-2005. The Peer Committee, however, considered the 2004 accounts and concluded that the consortium met the financial criteria. 4. Evaluation Process and Decision-Making by MSRDC: The evaluation process by MSRDC involved multiple stages, including scrutiny by consultants and a Peer Committee. The Peer Committee, comprising experts, disagreed with the consultants' interpretation and recommended including the consortium in the second stage. Despite this, MSRDC adhered to the consultants' view, leading to the consortium's exclusion. The Supreme Court found that the decision-making process was flawed due to the non-consideration of the indirect method of cash flow reporting and the arbitrary exclusion of the 2004 financial statements. 5. Judicial Review and Principles of Fairness and Transparency: The Supreme Court emphasized the importance of fairness, transparency, and the doctrine of "level playing field" under Article 19(1)(g) of the Constitution. The court held that the decision to exclude the consortium was arbitrary and violated the principle of legal certainty, which is a key aspect of the rule of law. The court also highlighted that judicial review in contractual matters is intended to prevent arbitrariness and ensure decisions are made based on clear and specified norms. Conclusion: The Supreme Court set aside the impugned judgment of the High Court, holding that the consortium was erroneously excluded from the second stage of the bidding process. The court extended the period for presenting financial bids by the consortium up to 15-12-2007, ensuring they had an equal opportunity to participate in the tender process.
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