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TMI Blog2020 (6) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... mencement of the work on account of pendency of the legal proceedings till now. In the instant case, nothing has been brought out by the petitioner to demonstrate that the process adopted or the decision taken by the respondent No 2/AAI is contrary to the law laid down by the Supreme Court. There is no material to arrive to a conclusion that the decision taken by the respondent No.2/AAI is arbitrary or irrational or that public interest is adversely affected that would compel us to interfere in the tender conditions - It has only made them more stringent. It cannot be said that the authority issuing the tender is not empowered to impose more stringent conditions to ensure better quality of performance of the contract and also to ensure that the contractor has the financial means to execute the contract and that he is not a fly by night operator who will abandon the work midstream. In the present case, the petitioner has failed to demonstrate as to how Conditions No.4 and 5 have been introduced only to eliminate it or to favour a few individuals. There is no justification for this court to exercise its jurisdiction under Article 226 of the Constitution of India only to dilute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are not in conformity with the CVC guidelines dated 12.07.2002 and 07.04.2004. Conditions No.4 and 5 of the additional incorporated conditions in the e- tender which are under challenge, read as under:- 4. During the technical evaluation stage, each bidder shall be assigned different marks out of a total of 100 marks, as per the criteria specified below:- S. No. Criteria Max marks Conditions score Remarks/documents for submission in technical bid folder 01 Firm turnover 20 a) if firm turnover 50 cr(20 marks) b) else if firm turnover more than 40 cr but up to 50 cr range (15 marks) c) else if firm turnover more than 30 cr. But up to 40 cr range(10 marks) d) else if firm turnover 20-30 cr range (05 marks) e) firm turnover 20cr(02 marks) Firm turnover is defined as the average turnover from facility management services over the last 3 years. Charted Accountant verified/audited turnover statements to be furnished as proof for the same 02 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 500 -2 marks Manpower on roll will be all employees on the books of the company on the date of release of the tender Duly CA audited statement of manpower wages/manpower roll for the previous four quarters to be submitted as part of the technical bid. For winning contractor, EPFO Challan/bank account statement in support of available manpower (duly submitted to EPFO0 in respect of the previous four quarter may be verified during award of contract. Inability to produce the same will lead to blacklisting of agency from future AAI MESS tenders 05 Quality Focus Capability 10 OHSAS: 18001 ( 1 yr) 10 marks QA certification should have been obtained at least a year before the date of the tender release. Certification should be valid with undertaking for periodic renewal 06 Possession of Machinery 10 a) If Book Value/ Rent Value of Machinery 5 cr 10 marks b) If Book Value/Rent Value of Machinery between 3 cr to 5 cr- 06 marks c) If Book Value/Rent Value of Machinery 1 cr or more b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a qualified bidder for being eligible for technical weightage and subsequently for opening of financial bids. These conditions have been challenged by the petitioner stating that they are arbitrary and contrary to the CVC guidelines and have been inserted only to eliminate competition and are therefore liable to be struck down. The petitioner relies on the CVC guidelines dated 17.12.2002. Paragraph 5 of the CVC guidelines which is relevant for the instant case, reads as under:- 5 i) Average Annual financial turnover during the last 3 years, ending 31st March of the previous financial year, should be at least 30 per cent of the estimated cost. ii) Experience of having successfully completed similar works during last 7 years ending last day of month previous to the one in which applications are invited should be either of the following:- a) Three similar completed works costing not less than the amount equal to 40 per cent of the estimated cost. Or b) Two similar completed works costing not less than the amount equal to 50 per cent of the estimated cost. Or c) One similar completed work costing not less than the amount equal to 80 per cent of the estimated c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court had observed as under:- 22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made lawfully and not to check whether choice or decision is sound . When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government. 24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to QC (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent to adopt QCBS. It is the case on behalf of the respondent authority that earlier when work was awarded in 2012, during that period footfall was very less but there is tremendous growth in passenger's movement reaching to approximately 7.5 million per annum (projected for the year 2017 18 is 8.6 million per annum) and due to the growing traffic, Corporate Head Quarters of AAI has classified Ahmedabad Airport under QCBS category A . It is also the case on behalf of the respondent authority that during the recent past authority has received numerous complaints pertaining to upkeeping of Terminals from the passengers and therefore, a conscious decision has been taken to adopt QCBS which as observed herein above cannot be said to be arbitrary. As observed herein above, as such it is for the employer to select the method and manner and even eligibility criteria and the Courts would not be justified in interfering with the same unless the same is found to be so perverse that no prudent person who take such decision and or adopt such method. 13.0. Now, so far as submission on behalf of the petitioners that some of technical bid evaluation criteria and other eligibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi High Court was upheld by the Supreme Court in Siemens Aktiengesellschaft and Siemens Ltd. Vs. DRMC Ltd. reported as (2014) 11 SCC 288. In Meerut Development Authority vs. Assn. of Management Studies reported as (2009) 6 SCC 171, the Supreme Court held as below:- 27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the abovestated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. 17. From a perusal of the above, the principle which emerges is that after having participated in the tender process, a bidder cannot turn around and challenge the tender conditions. The bidder has no other right except the right to equality and fair trea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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