9911796707
TMI Blog2023 (11) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... material information from the Audited Balance Sheet read with the statement of profit and loss like Notes. Therefore, impugned decision in disqualifying the petitioner BVG India Limited and others stands set aside. Whether the petition filed by M/s Ziqitza Healthcare Limited is maintainable on the grounds of delay? - HELD THAT:- Society - second respondent should have rejected its bid, however, Society being one of the State institution should have been fair in bid process without there being a violation of Article 14 and arbitrariness in the bid process. On these counts, the fourth respondent s technical bid evaluation and further proceedings of financial bid and declaring as L1 and further award of contract are liable to be set aside. Further, process of revisiting the remaining bid application are required to be examined from the stage of technical evaluation till award of contract. Whether the rejection of the bid application of BVG India Limited and others was justified? - HELD THAT:- Fourth respondent as a sole bidder does not fulfill the turnover INR 100 crore and so also experience. Further it is to be noted that as on the last date of submission of bid application, whateve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of receipt of copy of this order. Till then, the interim arrangement made by this Court shall continue. Conclusion - The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The rejection of BVG India Limited s bid and the award of the contract to M/s Pashupatinath Distributors Private Limited rejected, directing a reevaluation of the bids. Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... been compromised. h. For directing the respondent authorities to disqualify the Respondent No. 5 & 6 in the tender bearing reference no. 01/SHSB/PPP(AMBULANCE)/2022-23 for submission of false information in Annexure - G relevance to the RFP clause 7 for fraudulent practices. i. for quashing the Minutes of the meeting of Project Appraisal Committee (hereinafter referred as "PAC") held on 23.01.2023 related to financial bid opening with reference to the NIT: 01/SHSB/PPP (Ambulance)/2022- 23 wherein and where under M/s Pashupatinath Distributors Pvt. Ltd. (Respondent No. 4), the blue eye baby of the SHSB, has been declared L1 by lowering down the eligibility criteria earlier published in RFP." 2. Petitioner No. 1 - BVG India Limited (hereinafter referred to as 'BVG') is a company incorporated under the Companies Act and has been providing facility management services to several public institutions and private organizations. It is also providing ambulance services in various States like State of Maharashtra, Telangana and Jammu and Kashmir. It claims that it has expertise in the aforementioned services. 3. Petitioner No. 2 - Sammaan Foundation works with marginalized section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification from the Petitioners. 8. 19.07.2022 Sammaan Foundation made certain allegations against fourth respondent to the second respondent - Society. 9. 21.07.2022 The Society sought certain clarification on the observation arising out of scrutiny of the documents like turnover certificate seems to be from emergency medical services and not ambulance services. 10. 27.07.2022 Mukesh Kumar Roshan who is stated to be a member of the legislative assembly made certain correspondence while addressing to the Chief Secretary, Health Department and others. It is stated to have been forwarded to the Hon'ble Chief Minister and others. 11. 28.07.2022 Petitioner - Consortium filed their reply along with certain documents. 12. 17.08.2022 Petitioner No. 2 sent a reminder relating to consideration of allegations levelled on fourth respondent. 13. 31.08.2022 Second reminder was made to the Society about allegations against respondent No. 4 relating to non-fulfillment of certain criteria. 14. 14.11.2022 M/s Ziquitza Health Care Ltd. stated to have raised certain objections on the petitioners' eligibility. In this regard Society sought a clarification from the petitioner - Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover Certificate issued by Chartered Accountant while furnishing membership etc. 7. The petitioner - Consortium technical bid was rejected and disqualified due to non submission of certain documents of the Audited Balance Sheet read with statement of profit and loss account in which notes have been referred, i.e., notes have not been made available along with balance sheet. It is submitted that reading of mandatory documents under Clause 2.2, it does not stipulate that respective bidders are required to furnish internal material information in respect of Audited Balance Sheet like notes. It is submitted that on other issues respondent - Society had sought certain clarification and it has been clarified like emergency medical services or ambulance services. Similarly, if the respondent - Society was of the view that notes of the Audited Balance Sheet was warranted, in that event they could have sought clarification from the petitioner - Consortium. That apart there is no mandatory clause insofar as furnishing of certain materials like notes from the Audited Balance Sheet, therefore, rejection of bid or disqualifying the petitioner - Consortium in the technical bid stage is arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that experience in operations and management should be for the last three years i.e. FY 2018-19, FY 2019-20 and FY 2020- 21. Thus, Society - respondent has favoured the fourth respondent in not examining eligibility criteria of the fourth respondent in the light of Clause 2.2 and 2.3 of the NIT read with documents produced on behalf of fourth respondent. The learned senior counsel for the petitioners further submitted that the e-mail dated 29.06.2022 sent by the petitioners to the members of the technical bid committee was leaked by the Administrative Officer of the Society to the respondent No. 4. This act was without any authority and was done to favour the respondent No. 4. 10. Learned counsel for the petitioners has relied on the following three decisions of the Apex Court: (i) Poddar Steel Corporation vs Ganesh Engineering Works And Others reported in 1991 (3) SCC 273 (Paragraph Nos. 2, 6, 7) to support the contention that rejection of the petitioner's technical bid is on non-existing ground, in other words, eligibility criteria under Clause 2.2, there is no specific instruction to the bidders to the extent that Audited Balance Sheet must contain notes of the balance shee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the principles of good corporate governance may accept such tenders which are economically beneficial to it. It may be true that essential terms of the contract were required to be fulfilled. If a party failed and/or neglected to comply with the requisite conditions which were essential for consideration of its case by the employer, it cannot supply the details at a later stage or quote a lower rate upon ascertaining the rate quoted by others. Whether an employer has power of relaxation must be found out not only from the terms of the notice inviting tender but also the general practice prevailing in India. For the said purpose, the court may consider the practice prevailing in the past. Keeping in view a particular object, if in effect and substance it is found that the offer made by one of the bidders substantially satisfies the requirements of the conditions of notice inviting tender, the employer may be said to have a general power of relaxation in that behalf. Once such a power is exercised, one of the questions which would arise for consideration by the superior courts would be as to whether exercise of such power was fair, reasonable and bona fide. If the answer there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with post-contract situation, i.e., the situation during the currency of the contract and not with a situation at the inception of the contract. The tenderers are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs 11.14 per LPL or so, it is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability range. Not only the rate obtaining during the period when the tenders were called was Rs 11.05 per LPL, the more significant feature is that during the period of about more than two years pending the writ petition and writ appeal, the appellant has been supplying rectified spirit @ Rs 9.20 per LPL. If it was not possible for anyone to supply rectified spirit at a rate lower than Rs 14.72 (the lower figure of the viability range), how could the appellant have been supplying the same at such a low rate as Rs 9.20 for such a long period. It may be relevant to note at this stage the circumstances in which the appellant volunteered to supply at the said rate. Indo Mercantiles, the respondent herein, filed the writ petition and asked for an interim order. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Single Judge or by the Division Bench. It is in these circumstances that, we said, we have not been able to understand or appreciate the concept of "viability range", its necessity and/or its real purpose. Thirdly, the Division Bench states repeatedly in its judgment that having determined the "viability range", the Government called upon only the appellant- Dutta Associates (third respondent in the writ petition/writ appeal) to make a counter-offer to come within the "viability range" and that his revised offer at the higher limit of the "viability range" (Rs 15.71) was accepted. The Division Bench has stressed that no such opportunity to make a counter-offer was given to any other tenderer including the first respondent. As the Division Bench has rightly pointed out, this is equally a vitiating factor. 5. It is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated herein above, are more fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferring Indo Merchantiles over the appellant when both were prepared to supply at the same rate of Rs 9.20 per LPL. We further direct that fresh tenders should be floated within two months from today and the entire process finalised within four months from today." Submission of the respondent - Society 11. Learned counsel for the respondent - Society, author of NIT raised a preliminary objection that the petitioners' writ petition is not maintainable in view of defects in the affidavit to the extent that affidavit supporting writ petition does not reveal that it is on behalf of other petitioners. On this ground the present writ petition is liable to be dismissed. It is further submitted that agreement dated 15.06.2022, between petitioner Nos. 1 and 2 read with Clause 8 of the agreement, petitioners' writ petition is not maintainable, since the agreement dated 15.06.2022 ceased with effect from 21.06.2022, the date on which petitioners' bid was rejected. 12. It is further submitted that rejection of the petitioners' bid at the technical bid stage is in order. The reasons for rejection of petitioners' technical bid are that petitioners failed to furnish relevant materials which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a consortium to implement the project. In case of consortium, all the partners should have experience of operating & managing the Ambulance Service. 2. The eligibility criteria and Supporting Documents to be submitted by the bidders are as follows:- S. No. Eligibility Criteria for Bidders Mandatory Documents 2.1 The Bidder (Sole Bidder or for Consortium shall mean each of the partners including the lead partner) should be an established entity under Companies Act 1956/2013, or Limited Liability Partnership Act 2008, or Societies Registration Act 1860, or Indian Trusts Act 1882. For Company/LLP - Copy of the certificate of incorporation issued by Registrar of Companies (RoC). For Society/Trust - Certificate issued under Societies Registration Act 1860/ Indian Trust Act 1882. In the case of consortium, apart from the above certificate to be provided by each of the partners, the consortium shall also submit: a) Board resolutions for individual partner(s) including lead partner in the consortium, as per format 'Annexure-E' b) Memorandum of Understanding (MoU) - Consortium" in the format mentioned in 'Annexure-F' 2.2 The bidder (in case of sole bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtium members jointly must have the experience in Operations and Management of at least 750 Ambulances (BLS Ambulances and minimum 50 ALS Ambulances) supported by a Call Centre of atleast 75 seats in Public or Private Sector during last 3 years i.e FY 2018-19, FY 2019-20 & FY 2020-21.
Copy of 'Experience Certificate issued by Client/Employer' along with 'Work order or MoU or Contract' from the employers, to prove the experience.
Annexure 'C'
ASSIGNMENT OF SIMILAR NATURE SUCCESSFULLY COMPLETED
(On Non - judicial stamp paper of Rs. 100/- duly attested by Notary Public/Executive Magistrate)
(to be submitted by the Sole bidder or Lead partners of the Consortium)
We X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30.11.2022 to the effect that sufficient space has not been provided is not the ground to contend that he need not make available the complete information under the heading of balance sheet. It is also submitted that certain allegations have been made on behalf of the petitioners to the extent that e-mail sent by the petitioner No. 2 to the Society has been leaked. The same is not tenable in view of the fact that e-mail has been marked (CC) to 19 others. It is also submitted that corrigendum has been issued to suit the fourth respondent's eligibility. The same is not tenable, since petitioners have not assailed the corrigendum issued from time to time like 08.04.2022, 04.05.2022, 20.05.2022 and 05.06.2022. Even allegation that pre-bidding was held on 18.04.2022 to favour the fourth respondent is incorrect in absence of any corroborative material information. Pre-bid meeting was held on 18.04.2022 in accordance with the relevant clauses, therefore, there is no infirmity and it is in terms of Clause 6 (6.1 and 6.2) of Section II. 16. It is further submitted that paragraph No. 34 of the Society's counter affidavit would answer to the effect that petitioner has not made out a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters involving public service. 22. Learned counsel for the sixth respondent - M/s Ziqitza Healthcare Limited (for short 'sixth respondent') submitted that it is L2. In the event writ petition is allowed against fourth respondent, in that case it being L2 should be entitled to have the benefit of subject matter of contract. CWJC No. 8553 of 2023 23. In the instant petition, petitioner has prayed for the following relief/reliefs: "(i) Issuance of a direction, order or writ in the nature of certiorari quashing that part of the decision taken by the Project Appraisal Committee (PAC) of State Health Society, Bihar, Patna during its meeting held on 23/01/2023, by which respondent no. 4 has been declared to be L-1 bidder pursuant to the process of bidding carried out in furtherance of NIT bearing Reference No. 01/SHSB/PPP (AMBULANCE)/2022-23 published by the State Health Society, Bihar, Patna. (ii) Issuance of Order or writ, including writ in that nature of certiorari quashing that party of the decision of the Technical Committee, constituted under State Health Society, Bihar, Patna taking during its meeting held on 22/11/2022, by which, it has been, inter alia, recommended to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2022 and 07.12.2022 also insofar as ineligibility of respondent No. 4 as required under request for proposal Serial No. 2.3 under Section V of eligibility criteria read with corrigendum dated 18.04.2022. In this regard, he has pointed out that the certificate/affidavit is for the Consortium and it is not relating to respondent No. 4 only vide certificate dated 01.06.2022. 26. It is also submitted that in terms of Clause 2.2 of the NIT, one of the criteria is that 100 crores turnover should be by sole bidder for the years 2018-19, 2019-20 and 2020-21. Taking note of supplementary affidavit dated 11.10.2023, Note 15 read with the amount mentioned as on 31.03.2021, it is Rs. 32,71,91,698 and as on 31.03.2020, it is 23,02,47,915. It is further submitted that in the affidavit, it is materially evident that share of the respondent No. 4 is 60% and 40 % is that of Sammaan Foundation. However, in the affidavit dated 11.10.2023, from perusal of balance sheet (Note 22), it appears that the fourth respondent's share is 99 % as on 31.03.2021. This is also evident from counter affidavit filed on behalf of respondent No. 4 in CWJC No. 16899 of 2022. Submission of Fourth respondent 27. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2.2 is required to be examined whether Audited Balance Sheet of the petitioner/BVG is in order or not? On this point, it is submitted that Section 129 read with Section 2(40) of Companies Act, 2013 is in respect of Financial Statement and not audited balance sheet, therefore, contention of the fourth respondent that petitioner failed to furnish material information which are referred in the balance sheet is not required to be produced along with bid application other than balance sheet. Further, there are no specific instructions to the bidders that while furnishing audited balance sheet each of the bidders is required to furnish Notes mentioned in the audited balance sheet. In the absence of specific instruction to the bidders, the respondent - Society cannot expect each of the bidders to produce material information of the audited balance sheet. On the other hand, what is required under Clause 2.2 is only audited balance sheet and not its internal material information. On this point, learned counsel for the petitioner/BVG relied on reported decision of the Apex Court in the case of Reliance Energy Limited and Another vs. Maharashtra State Road Development Corp. Ltd. and Others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as Rs. 1,63,93,08,249 - 1,39,2036533/- and revenue from ambulatory service on comparison is Rs. 10,37,48,000 - 23,02,47,915/- and it is indicated that 99% whereas for the year 2020 - 21 the amount shown is 1,65,58,66,918/-. The above figures make it crystal clear that fourth respondent has not approached Society - respondent insofar as bidding the subject matter of work with clean hands. In fact, Society - respondent should have rejected the fourth respondent's application at threshold due to discrepancies in mentioning the amount in balance sheet and other related papers. 38. Fourth respondent does not fulfill the Clause 2.3 relating to experience for the year 2018-19, 2019-20 and 2020-21. The certificate dated 28.05.2022 furnished by the fourth respondent is for the period with effect from 29.07.2017 to till date. It is pointed out that on 20.09.2018 criteria was modified to the extent of 44 ALSA taking note of financial year read with the experience, fourth respondent did not fulfill the experience criteria vide Clause 2.3. 39. Learned counsel for the petitioner submitted that fourth respondent who has been declared as L1 is incorrect, since he does not fulfill the requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d agreement dated 05.08.2016 it was 8 %. In this backdrop, 99% has been shown in the balance sheet. It is submitted that there is no profit sharing as between the fourth respondent and Sammaan Foundation. On the other hand, Sammaan Foundation has provided fourth respondent service for which certain percentage indicated in the agreements dated 05.08.2016 and 18.04.2017 has been provided. There is no sharing of profit with reference to earlier tender dated 18.06.2016. 46. Fourth respondent's counsel submitted that having regard to the documents of experience certificate dated 28.05.2022, read with work order dated 13.02.2017 pursuant to the earlier tender dated 18.06.2016 fourth respondent fulfills the criteria in Clause 2.3. 47. He has also countered the submission that petitioner has not raised year wise experience certificate. Learned counsel for the fourth respondent contended that citations quoted supra on behalf of the petitioner does not assist the case of the petitioner. He distinguished the citations in respect of (2018) 5 SCC 462 while reading paragraph 51 to the extent that it was third party. 48. In support of fourth respondent's eligibility is concerned, he has quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Limited, Sammaan Foundation and in the capacity of Consortium of BVG India Limited and Sammaan Foundation have not filed Vakalatnama. On this preliminary issue, learned counsel for the petitioners submitted that there is no defect in the Vakalatnama or affidavit supporting the petition. It is submitted that Consortium between petitioner - BVG Indian Limited and Sammaan Foundation is existing in the eye of law for the purpose of questioning the validity of disqualification of petitioner/BVG and others, reading of Consortium - agreement dated 15.06.2022 shows it is for the purpose of participating in the subject matter of bid process. Therefore, prima facie, petition of BVG India Limited and two others petitioners is maintainable. We find that there is no infirmity in the affidavit and so also Vakalatnama, therefore, the preliminary objection raised on behalf of second respondent - Society and fourth respondent - M/s Pashupatinath Distributors Private Limited stands rejected. 52. Both second respondent - Society and fourth respondent raised a preliminary issue in respect of maintainability of the writ petition filed by M/s Ziqitza Healthcare Limited. It is submitted that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 2.2, it is evident that petitioners' - BVG bid application was rejected contrary to the intention of the NIT in particularly enclosure of Audited Balance Sheet except that there are no instructions to the respective bidders in the NIT to produce internal material information of Audited Balance Sheet like 'Notes'. Therefore, there is arbitrariness in the rejection of petitioners' - BVG bid application. Similarly, fourth respondent - Pashupatinath Distributor Private Limited bid application was held to be in order is incorrect and it is not in consonance with clause/criteria at Clause 2.2 and Clause 2.3 of NIT. Fourth respondent - Pashupatinath Distributor Private Limited is not fulfilling the turnover of INR 100 crore and experience qualification is also not fulfilled. These defects have been ignored by the second respondent - Society which proceeded to hold that fourth respondent is eligible in technical bid evaluation and financial bid, it's declaration as L1 and award of contract to the respondent No. 4. Thus, the decision of the second respondent - Society would fall under the arbitrariness. Therefore, we are not re-assessing eligibility of bidders. On the other hand, decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the respondents is incorrect. Infact, the petitioners' counsel in their reply, it is submitted that Section 2(40) of Act, 2013 read with Section 129 of Act 2013 in respect of Financial Statement, there is difference between the Audited Balance Sheet and Financial Statement. Petitioners' counsel cited Apex Court decision in the case of Reliance Energy Limited and another vs. Maharashtra State Road Development Corp. Ltd. and others reported in (2007) 8 SCC 1, paragraph Nos. 38 and 39 on the point of mala fide rejection. Petitioners' technical evaluation bid was rejected on the score that Notes have not been enclosed along with balance sheet. In view of these facts and circumstances, contentions of the respondents that it is a mandatory requirement to produce Notes along with Audited Balance Sheet is not tenable. Whatever instructions are assigned in the NIT, its various Clauses were required to be adhered by respective bidders. On the other hand, second respondent - Society rejected the petitioners - BVG bid application on technical evaluation to the extent in not producing Notes of the Audited Balance Sheet read with the statement of profit and loss account. Therefore, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tender notice as the earnest money was offered by the banker's cheque of a bank other than the State Bank of India mentioned in the said clause. The High Court directed the authorities to consider the other valid tenders and further observed that should the other tenders be found to be unacceptable it would be open to the authorities to invite fresh tenders. The present appeal is directed against this judgment. 6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories -- those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by one to another. The High Court's decisions in B.D. Yadav case [AIR 1984 Bom 351] and T.V. Subhadra Amma case [AIR 1982 Ker 81 : 1981 Ker LT 444] are also illustrations where literal compliance of every term of the tender notice was not insisted upon." The aforementioned principles laid down by the Apex Court assist the contention of the petitioner. (b) B.S.N. Joshi and Sons Ltd. case cited supra, paragraph Nos. 66 (i) to (vii), 69 reads as under: 66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under: "(i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he superior courts would be as to whether exercise of such power was fair, reasonable and bona fide. If the answer thereto is not in the negative, save and except for sufficient and cogent reasons, the writ courts would be well advised to refrain themselves in exercise of their discretionary jurisdiction" The aforementioned decision has bearing on the petitioners' contention. (c) Dutta Associates Pvt. Ltd. case cited supra is not assisting the contention of the petitioners - BVG India Limited and others. 56.2 Respondent - Society cited the following decisions- (a) State Bank of Travancore vs. Kingston Computers India Private Limited reported in (2011) 11 SCC 524. This has no relevancy in support of the Society's case. (b) Cox And Kings India Limited vs. Indian Railways Catering and Tourism Corporation Limited and Another reported in (2012) 7 SCC 587. This case has no relevancy to the fact in issue in support of Society's contention. 56.3 Fourth respondent has cited and relied upon the following decisions: (a) National High Speed Rail Corp. Ltd. case cited supra, the aforementioned decision would not assist the fourth respondent having regard to the fact that fourth respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; (vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work." The factual aspects of the matter is distinguishable inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was modified to 60 % and 40 % respectively. On the other hand, in the balance sheet it has been shown as 99 %. Even the figures mentioned in the balance sheet are not tallying with figures mentioned therein. It is also submitted that fourth respondent had furnished GST, PAN, ESI, PF of individual as well as Consortium and material information show different numbers, therefore, fourth respondent has not filed bid application with correct factual material information. On the other hand, fourth respondent has not approached the second respondent Society with clean hands. It is also submitted that Society - Administrative Officer had leaked the certain information of e-mail of the petitioner BVG India Limited and two others in respect of certain defects alleged to have been committed by the fourth respondent. However, this issue is trivial in nature and it does not assist petitioner - BVG. Taking note of the above mentioned defects in the fourth respondent's bid application, at threshold, Society - second respondent should have rejected its bid, however, Society being one of the State institution should have been fair in bid process without there being a violation of Article 14 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be taken into consideration. On this point, he relied on (2018) 5 SCC 462, paragraph 51. 63. The aforesaid contention of the fourth respondent is not appreciable for the reasons that the words existing in the relevant Clause is with reference to a particular years i.e. 2018 - 19, 2019 - 20 and 2020 - 21 and not over all period of three years. Further we have noticed that fourth respondent experience is for a period with effect from 29.07.2017 to till date (till last date of submission of bid application). If these dates and events are taken into consideration, obviously fourth respondent does not fulfill the requisite experience for a particular year. Further, we have noticed that with effect from 20.09.2018, criteria was modified to the extent of 44 ALSA taking note of financial year read with the experience, vide Clause 2.3. On factual aspects itself, the fourth respondent has not fulfilled the criteria of experience for respective financial year, the cited decision i.e. (2018) 5 SCC 462, paragraph No. 51 does not assist the fourth respondent contention. 64. Fourth respondent's eligibility is concerned, learned counsel for the fourth respondent is relying on the Apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has held that in matters of judicial review the basic test is to see whether there is any infirmity in the decision-making process and not in the decision itself. This means that the decision-maker must understand correctly the law that regulates his decision-making power and he must give effect to it otherwise it may result in illegality. The principle of "judicial review" cannot be denied even in contractual matters or matters in which the Government exercises its contractual powers, but judicial review is intended to prevent arbitrariness and it must be exercised in larger public interest. Expression of different views and opinions in exercise of contractual powers may be there, however, such difference of opinion must be based on specified norms. Those norms may be legal norms or accounting norms. As long as the norms are clear and properly understood by the decision-maker and the bidders and other stakeholders, uncertainty and thereby breach of the rule of law will not arise. The grounds upon which administrative action is subjected to control by judicial review are classifiable broadly under three heads, namely, illegality, irrationality and procedural impropriety. In the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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