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TMI Blog2023 (5) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. It is not in dispute that the first and the foremost requirement of the Tender was the prescribed operating range of the single decker buses which would operate for around and average of 200 Kms in a single charge in actual conditions with 80% SoC without any interruption. Then materials on record would indicate that the TATA Motors in its bid deviated from this requirement and had informed BEST that it could carry the operating range in the standard test conditions which was not in accordance with the Tender conditions. The High Court has rightly observed in its impugned judgment that the bid of the TATA Motors failed to comply with the said clause. TATA Motors deviated from the material and the essential term of the Tender - the restriction on revision of documents under Clause 16 of Schedule I, which states, No addition/correction, submission of documents will be allowed after openin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears (hereinafter referred to as, the Tender ). 7. The Tender document provided for Technical specifications as stipulated under Clause 3.5(e) and Clause 12 of Section 2 of Schedule IX, under which the bidders were required to provide Single Decker Buses which can run 200 Kms in single charge without interruption in actual conditions for the relevant Gross Vehicle Weight (GVW) with air conditioning with not more than 80% battery being consumed. Clause 3.5(e) and Clause 12 respectively are reproduced hereunder: SCHEDULE IX TECHNICAL SPECIFICATIONS Section 2: Technical specifications of SD AC Electric Buses under Wet Lease Scheme .. 8. In all, eight market players participated in the Tender process, including EVEY and TATA Motors. In the pre-bid meeting held on 11.03.2022, TATA Motors submitted its pre-bid points, wherein under Point 1, it requested BEST to consider its bid for 200 Kms per day with 75-minutes of opportunity charging time during the day operations and range testing conditions as per AIS 040/FAME II. 9. On 15.03.2022, BEST published the minutes of the pre-bid meeting. BEST revised certain specifications, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of 1 hour. The same was done in accordance with the specifications of the earlier tender dated 20.08.2021, which allowed for an opportunity time of 60 minutes. 15. EVEY vide email dated 06.05.2022, provided a revised Annexure Y as per the Single Charge Requirements mentioned in the Tender along with an explanation for the same holding it to be a mere clerical error . 16. The Tender bids were opened on 04.05.2022 and the technical suitability evaluation was announced on 06.05.2022. BEST in its technical suitability evaluation dated 06.05.2022, held TATA Motors along with four other bidders, to be technically non-responsive . TATA Motor s bid was rejected on account of technical deviation with respect to the operating range in its Annexure F and Annexure Y, respectively. The bid offered by EVEY in the said report was deemed to be technically responsive . 17. Thereafter, on 06.05.2022, the price bids of the eligible bidders were opened, and EVEY was declared to be the L1 bidder. The price bid of TATA Motors was not opened in accordance with Sr. No. 7 of the Schedule I (Invitation for Proposal) and Sr. No. 15 of the Schedule II (Definitions and Instructions to Tendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.05.2022. EVEY accordingly submitted the required Performance Bank Guarantee on 23.05.2022. An agreement for operation of Stage Carriage Services for public transport of Single Decker AC Electric Buses with Driver in the city of Mumbai and its extended suburbs on Gross Contract Cost (GCC) model for 12 years was entered into between the EVEY and BEST on 26.05.2022. 21. A subsidy bank guarantee dated 02.06.2022 was submitted by EVEY and BEST released the requisite amount to the EVEY s account towards subsidy on 10.06.2022. The EVEY even provided the BEST with 8 buses between 04.07.2022 and 05.07.2022. 22. The High Court vide its impugned order and judgment dated 05.07.2022, took the view that the requirement for the operating range to be more than 200 Kms in a single charge in actual conditions was unambiguous. Accordingly, the High Court upheld the disqualification of TATA Motors and rejected their claim from being considered as an eligible bidder as they failed to comply with the technical requirements of the Tender. The High Court in paragraphs 9 and 13 respectively of the impugned order observed thus: 9. Reading the aforesaid, it is unambiguous that operatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical bid 24. The High Court as a result, held that the email dated 06.05.2022 ought not to have been entertained, and the technical bid evaluation, which was released on the same day did not depict fairness in the actions of BEST. The High Court in paragraphs 20 22 respectively held as under: 20. It has been contended by Respondent No.1 that letter issued by Respondent No.2 on 6th morning did not influence the decision to hold the bid of Respondent No.2 responsive in the afternoon of 6th May 2022. The same is not borne-out from the facts and circumstances of the case. Clause-16, as stated above specifically and categorically prohibits additions / corrections / submission of documents after opening of technical bid. Technical bids have been opened on 4th May 2022. Thereafter no such letter could have been entertained. The proximity of the time i.e. 6th May at 11.35 am. the letter issued by Respondent No. 2 along with the modified Annexure-Y and after two hours, the bid of Respondent No.2 held responsive, does not support the contention of Respondent No.1 that the said revised Annexure-Y and the letter written on 6th May morning did not weigh in holding Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is provided to it for getting the prototype vehicle. The said period is not over. It is not even one month. The Respondent No.2's tender is accepted. The Courts upon coming to the conclusion that the decision making process was not fair. The same lacked fair play in action and arbitrary, will have to step in. 24. In the light of the above, we set aside the decision of the Respondents of acceptance of tender of Respondent No.2. Respondent No.1, if it so desires, may proceed with a fresh tender process. (Emphasis supplied) 26. In such circumstances referred to above, all the three parties are here before this Court with their respective petitions. 27. It is pertinent to note that during the pendency of the proceedings before the High Court and after submitting the subsidy guarantee, EVEY had already supplied total 8 buses between 04.07.2022 to 05.07.2022. However, this Court by an interim order dated 14.07.2022 granted an interim stay of the impugned judgment insofar as EVEY is concerned. This Court observed that, the supply of the buses, if any, by EVEY would be subject to the result of these petitions and EVEY shall not claim any equity at a later stage. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Bidder''. 30. He submitted that, in view of the decision of this Court in, N.G. Projects Limited v. Vinod Kumar Jain and Others, reported in (2022) 6 SCC 127, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether to accept the bid of a tenderer and that contract of public service should not be interfered with lightly. The injunction or interference in the Tender leads to additional costs on the State and is also against public interest. 31. He submitted that the allegations of favouritism levelled by TATA Motors by pointing towards the fact that apart from EVEY, there were two more parties who were technically qualified and were L2 and L3 viz., Switch Mobility Automotive Limited and PMI Electro Mobility Solutions Private Limited respectively, EVEY was declared L1 and awarded the Tender only after opening of the price bids at a later stage are reckless and baseless. 32. Relying on the decisions of this Court in Raunaq International Ltd. v. I.V.R. Construction Ltd. and Others reported in (1999) 1 SCC 492 and S.S. Company v. Orrisa Mining Corporation Limited reported in (2008) 5 SCC 772, he subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court in paragraph 19 of the impugned judgment has rightly observed that the battery range guarantee can be given only by the OEM from whom the bidder is purchasing the battery, and in such circumstances, the same cannot be said to be incidental. The same was considered as an important part of the technical evaluation by BEST. 37. He vociferously submitted that Annexure Y was a part of the bid document and once submitted, could not have been permitted to be altered after the bid submission end date i.e., 02.05.2022. The argument that Annexure Y was optional and not required at the time of submission of the bid is an afterthought, and the same being a question of fact or at the most a mixed question of fact and law cannot be raised for the first time in a Special Leave Petition. He relied on the decision of this Court in Jagannath Behera 15 Ors. v. Raja Harihar Singh Mardaraj Bhramarbara Roy , reported in 1958 SCR 1067 (Paras 17 and 19); Karanpura Development Co. Ltd v. Raja Kamakshya Narain Singh Etc ., reported in 1956 SCR 325 (Para 24); Vasantkumar Radhakisan Vora v. Board of Trustees of Port of Bombay , reported in (1991) 1 SCC 761 (Para 24); Steel Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in single charge as certified per AIS 040. 43. He submitted that none of the bidders including EVEY (successful bidder) deviated from this mandatory condition. Hence, TATA Motors was declared a non-responsive bidder at the technical stage itself. On 06.05.2022, BEST undertook the technical evaluation and took a decision that of all the bidders found eligible and responsive, EVEY had quoted the lowest rates and accordingly the contract was awarded in its favour. 44. The learned SG further submitted that the successful bidder was required to fill up Annexure Y. However, Annexure Y was neither a condition precedent for being a responsive bidder nor a mandatory condition for awarding the contract. 45. EVEY rectified its mistake, explaining that the Annexure Y submitted by it was inadvertently placed after doing a cut-and-paste job from the previous tender. EVEY filed a revised/fresh Annexure Y strictly in accordance with the Tender. 46. The learned SG vehemently submitted that to ask BEST to issue a fresh tender notice would be against public interest. In the contract given to EVEY in May 2022, BEST was to pay Rs. 46.81/KM to EVEY. BEST examined the possibility of re-ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where such interference will cause unnecessary loss to the public exchequer. (See: Silppi Constructions Contractors v. Union of India , (2020) 16 SCC 489) 49. It is not in dispute that the first and the foremost requirement of the Tender was the prescribed operating range of the single decker buses which would operate for around and average of 200 Kms in a single charge in actual conditions with 80% SoC without any interruption. Then materials on record would indicate that the TATA Motors in its bid deviated from this requirement and had informed BEST that it could carry the operating range in the standard test conditions which was not in accordance with the Tender conditions. The High Court has rightly observed in its impugned judgment that the bid of the TATA Motors failed to comply with the said clause. TATA Motors deviated from the material and the essential term of the Tender. It may not be out of place to state at this stage that it is only TATA Motors who deviated from the condition referred to above. However, we are of the view that the High Court having once declared TATA Motors as non-responsive and having stood disqualified from the Tender process should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Y was originally required to be submitted by the Successful Bidder after the evaluation of the bid and the same did not figure in the list of documents and annexures to be included in the technical submissions, as provided under Clause 5.1.1 of Schedule II of the Tender. Further the format provided for Annexure Y in the Tender documents in its heading states that the Successful Bidders shall upload a Letter of Undertaking on their letter head as below . Therefore, we are of the view that the restriction on revision of documents under Clause 16 of Schedule I, which states, No addition/correction, submission of documents will be allowed after opening of technical bid, is only limited to the documents necessary to be included in the technical bid and would not be applicable to any such document which does not form a part of the technical bid. 51. We are of the view that the High Court should have been a bit slow and circumspect in reversing the action of BEST permitting EVEY to submit a revised Annexure Y. We are of the view that the BEST committed no error or cannot be held guilty of favoritism, etc. in allowing EVEY to submit a revised Annexure Y as the earlier one wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. 55. In such circumstances referred to above, we set aside that part of the judgment and order passed by the High Court by which the decision of BEST to accept the tender of EVEY was set aside and it was left to the discretion of BEST to undertake a fresh tender process. 56. The Appeal filed by TATA Motors accordingly fails and is hereby dismissed. Whereas the Appeals filed by EVEY and BEST are allowed to the aforesaid extent. 57. There shall be no order as to costs. 58. Pending application, if any, stands disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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