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TMI Blog2024 (10) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Bidders were required to furnish the information and the scanned copies of the documents relating to qualification criteria particularly to substantiate their Financial capacity. For the purpose of substantiating Financial Capacity, the Bidders were obliged to submit the scanned copies (self-certified and notarised/certified) of the Audited Annual Reports for the last three financial years as chosen by the Bidder, comprising of the audited balance sheets and profit and loss accounts of the Bidder, along with other documents as stated therein. This was the mandatory requirement of the NIT, the same being related to the qualification criteria as also transpiring from Clause 2.2.5 of the RFB. Admittedly, the Respondent No.8 had not submitted the scanned copies of its audited Annual Reports for the last three financial years, at the time of submitting/uploading the bid documents, before the last date fixed i.e 01.12.2023 and the same were submitted on 17.04.2024 only when the clarification was sought from the Respondent No.8, after the Technical bids were opened on 04.12.2023. When the Technical bid of the Appellant was rejected by the Respondents on 06.05.2024 on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criteria as contained in Clause 10 of the Notice Inviting Tender (NIT) dated 16.08.2023, and thereby had failed to qualify the Eligibility criteria laid down therein? 3. The Appellant-Banshidhar Construction Private Limited has assailed the Judgment and Order dated 18.07.2024 passed by the High Court of Jharkhand at Ranchi in Writ Petition (Civil) No. 2896 of 2024, whereby the High Court has dismissed the said writ petition, confirming the impugned decision dated 06.05.2024 of the Technical Bid Committee of the Respondent-BCCL rejecting the Technical bid of the Appellant. 4. The Respondent no.1- BCCL is a subsidiary of Coal India Limited and the Respondent Nos. 2-7 are the authorities/employees of the BCCL. On 16.08.2023 the Respondent no. 1 floated a Tender bearing reference No. NIT no. BCCL/CMC/MDO-RS/SIMLABAHAL/ BASTACOLLA Area/2023/318 for the project to Re-open, salvage, rehabilitate, develop, construct and operate for excavation I extraction of coal from Amalgamated East Bhuggatdih Simlabahal Coal Mine and delivery thereof to the Authority at Bastacolla Area of BCCL on revenue sharing basis, for a period of twenty-five years. The Appellant-company vide Board Resolution dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned on 13.11.2023, and other documents including Power of Attorney were notarized on 14.11.2023. According to him the bid documents were uploaded/filed on 29.11.2023 i.e. within the stipulated time, which complied with all the mandatory requirements of Clause 10 of the NIT. Mr. Prasad has relied upon various decisions of this Court to submit that the decision of the Government and its instrumentalities must not only be tested by the application of Wednesbury principle of reasonableness but also must be free from arbitrariness. Invoking the Public Trust Doctrine, Mr. Prasad lastly submitted that Appellant s bid was much more competitive and favourable (Rs. 700 crores approx.) to the Respondent BCCL, and by allotting the tender to the Respondent no. 8 which even otherwise was ineligible, a commensurate loss was caused to the public through the Respondent BCCL. 9. However, the learned Solicitor General Mr. Tushar Mehta, learned senior counsel Mr. Anupam Lal Das and Mr. Vikramjit Banerjee, ASG appearing for Respondent no. 1 to 7 justifying the decision of Tender Evaluation Committee rejecting the Technical Bid of the Appellant, submitted that the Power of Attorney was dated 07.11.2023, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s discernible from the pleadings and the documents on record and from the submissions made by the learned Counsels for the parties are that the Notice Inviting Tender for the project in question was issued by the Respondent BCCL on 16.08.2023, in response to which, the Appellant and the Respondent No.8 had submitted their respective bid documents. The Appellant Company vide the Board Resolution dated 07.11.2023 had authorised its Director Lalti Devi for the purpose of participating in the tender and a Power Of Attorney dated 07.11.2023 was executed in her favour. The said Power Of Attorney was notarised before the Notary on 14.11.2023. It is also not disputed that the Appellant submitted/uploaded the bid documents on 29.11.2023, that is before the last date of submission, 01.12.2023. It is also not disputed that the Technical bids were opened on 04.12.2023 and the Appellant was declared technically disqualified on 06.05.2024. The extract of Tender Summary Report dated 07.05.2024 stated in the Column Remarks that the Appellant Did not comply with Clause No. 10 of NIT (Part I/ Cover I Other Important Documents (OID) Point No. 02 Appendix II (Power of attorney for signing of bid). 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n / declaration furnished online by the Bidder against each qualification criteria (CONFIRMATORY DOCUMENT) 1. Bidder s Covering Letter and acceptance of bid conditions Copy of the Bidder s Covering Letter, acceptance of the Bid conditions and making commitments on the Bidder s letter head as per proforma (provided at Appendix I of RFB) Note: In case the Bidder is a Consortium, the above documents are to be signed by all the Members. 2. Financial Capacity i) Certificate having UDIN number specifying the Net Worth of the Bidder as at the close of the latest financial year among the 3 (three) financial years as chosen by the Bidder, from a chartered accountant based on the financial statements audited by statutory auditor exhibiting the information submitted by the Bidder and confirming that the methodology adopted for calculating the Net Worth conforms to the provisions of the Bidding Documents; ii) Certificate having UDIN number specifying the average Total Income of the Bidder during the last 3 (three) financial years, as chosen by the Bidder, from a chartered accountant based on the financial statements audited by statutory auditor exhibiting the information submitted by the Bidde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bidder to this effect; or b) If the DSC holder is bidding online on behalf of the bidder then the power of attorney granted by the Bidder, evidencing authorization granted to the DSC holder to submit the Bid on behalf of the Bidder. 5. Undertaking in Support of the authenticity of submitted information and documents and other commitments An undertaking is to be given by the Bidder as per the format given at Enclosure I of this NIT, confirming the genuineness of the information furnished online, authenticity of scanned copy of documents uploaded and such other declarations. Note: In case the Bidder is a Consortium, the undertaking is to be signed by all the Members. (Original undertaking shall be submitted as per the provisions of NIT) 6. Any other document to support the qualification information as submitted by the Bidder online. Note: Only one file in .pdf format can be uploaded against each qualification criteria. Any additional/ other relevant documents to support the information/declaration furnished by Bidder online against qualification criteria may also be added by the Bidder in the same file (in .pdf format) to be uploaded against respective qualification criteria. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section II thereof. The Clause 2.1.6 of the said Instructions stated that non-compliance with any of the bidding instructions may lead to rejection of the Bid. Further, Clause 2.2.5 thereof specifically stated that the Bidder shall furnish the requisite documents listed in Paragraphs 9 and Paragraphs 10 of NIT. 15. From the bare perusal of the afore stated Clause 10, it clearly transpires that the Bidders were required to furnish the information and the scanned copies of the documents relating to qualification criteria particularly to substantiate their Financial capacity. For the purpose of substantiating Financial Capacity, the Bidders were obliged to submit the scanned copies (self-certified and notarised/certified) of the Audited Annual Reports for the last three financial years as chosen by the Bidder, comprising of the audited balance sheets and profit and loss accounts of the Bidder, along with other documents as stated therein. This was the mandatory requirement of the NIT, the same being related to the qualification criteria as also transpiring from Clause 2.2.5 of the RFB. 16. Admittedly, the Respondent No.8 had not submitted the scanned copies of its audited Annual Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in the NIT that the Power Of Attorney had to be notarised before signing the bid documents. As per Part-1/Cover I of Clause 10 of NIT, pertaining to the other important documents, the only requirement was to furnish the scanned copies of documents (self certified and notarised/certified) to be uploaded by the bidder in support of the information/declaration furnished online by the Bidder against each criteria, and against the criteria for Power Of Attorney, it was stated that it should be as per the format annexed. The Power Of Attorney submitted by the Appellant was as per the format and duly notarised on 14.11.2023, and all the requisite documents along with notarised POA were submitted before the last date fixed for submission. 19. It would be apposite to note that as per Section 2 of the Power Of Attorney Act, 1882, the donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Court is concerned primarily as to whether there has been any infirmity in the decision making process . In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] where it was said that: (p. 144a) The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court. By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] the courts can certainly examine whether decision-making process was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution. 24. In Tata Cellular vs. Union of India (1994) 6 SCC 651 , this Court had laid down certain prinici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action. 27. In Mihan India Ltd. vs. GMR Airports Ltd. and Others (2022) SCC Online SC 574 , while observing that the government contracts granted by the government bodies must uphold fairness, equality and rule of law while dealing with the contractual matters, it was observed in Para 50 as under: - 50. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] . However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 29. The submissions made by the learned Counsels for the Respondents that the project in question being Infrastructure project and also one of the Mega projects, this Court may not interfere more particularly in view of the fact that agreement has already been entered into between the Respondent BCCL and the Special Purpose Vehicle of the Respondent no.8, cannot be accepted, when we have found that the impugned decision of the Respondent BCCL was grossly arbitrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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