Arijit Banerjee, J.
1. This is an appeal against the Judgment and order dated 11 April, 2019 passed by a learned Single Judge whereby the appellant's writ petition was dismissed. In a tender process pertaining to collection of toll at Vidyasagar Setu (Second Hooghly Bridge), the private respondent was the highest bidder (H-1) and the appellant no. 1 was the second highest bidder (H-2). The appellants approached the learned Single Judge contending that the private respondent did not meet the Technical Criteria as mentioned in the notice inviting tender and hence the Authorities should be restrained from awarding the contract to it. The learned Single Judge negated such contention of the appellant.
2. The brief facts of the case are that a notice dated 6 March, 2019 inviting E-Bid for collection of toll at Vidyasagar Setu, Kolkata including handling operation, maintenance, renewing and renovation and upgrading of existing electronically operated Toll Collection system as per requirement was issued by the Hooghly River Bridge Commissioner (in short, "HRBC"). The Technical Criteria stipulated in such notice were to the following effect:
"5.1. Technical Criteria a. The bidder must have minimum 4(four) years experience of operating Toll Bridges and/or Toll Roads.
b. The bidder must have experience of operation of a Toll bridge or Toll road having at least 10(ten) lanes preferably with provision of at least 2(two) reversible lanes with fully electronically operated Toll Collection system at single location in India, involving collection of toll fees from vehicles only.
c. The bidder shall have experience of handling minimum 50,000 (fifty thousand) vehicles per day in any single Toll Bridge/ Toll Road at a single location in India. d. The amount of average annual toll collection made should be at least Rs. 50(fifty) crore for the last 3(three) years in all locations in India ending on 31st March, 2018. The supporting document is to be submitted duly certified by Chartered Accountant. The Bidders should submit appropriate Credential Certificate from the competent authority in support of all the above technical criteria."
3. In the tender process the private respondent emerged as the highest bidder (H-1). The appellant no. 1 (in short, "MEP") became the second highest bidder (H-2) .
4. The appellants approached the learned Single Judge by way of a writ petition praying for essentially a writ of or in the nature of mandamus commanding the respondent authorities to hold that the private respondent did not have eligibility criteria and to allot the contract in favour of MEP. Cancellation of the subject tender was also sought for.
5. On behalf of the appellants two points were urged before the learned Single Judge as also before us.
6. Firstly, it was urged that the private respondent does not have experience of handling minimum 50,000 vehicles per day in any single Toll Bridge/ Toll Road at a single location in India. In effect, learned Senior Counsel for the appellants argued that requisite experience for a minimum period of four years as envisaged by clause 5.1(a) must be read into clause 5.1(c). Secondly, it was submitted that the Central Vigilance Council (CVC) guidelines have been flouted. The said guidelines required the authorities to evaluate the tender documents in the presence of the tenderers in order to maintain transparency. The appellants received a message through Short Message Service (SMS) from the respondents to the effect that they would be opening the tender offers at a certain point of time. The SMS was received 10 (ten) minutes before such opening. This was deliberately done to keep the appellants out of the loop at the time of opening and evaluation of the tenders. The entire tender process stands vitiated by reason of non-compliance with the CVC guidelines.
7. Learned Additional Advocate General appearing for HRBC submitted that the authorities are at liberty to interpret the terms and conditions of the tender process and so long as such interpretation is not perverse and are applied to all bidders uniformly, the Writ Court would be slow to interfere. He submitted that clause 5.1 contemplates two different time periods i.e. four years for clause (a) and three years for clause (d). Clauses (b) and (c) do not contemplate any particular time period. In other words, the experience that a bidder is required to have under clauses (b) and (c) need not be for any specified period of time. There is no reason to read into clauses (b) or (c) the four years time period that has been specified in clause (a). The authorities have interpreted clauses (b) and (c) to mean that the experience contemplated therein should be for a reasonable period of time.
8. As regards alleged violation of the CVC guidelines, learned Additional Advocate General submitted that the CVC guidelines apply to Central Government and Public Sector Undertakings and are not attracted in the facts of the present case. The time line prescribed in the tender process was strictly followed. The evaluation process was undertaken online. The appellants had adequate notice of commencement of the evaluation process online and nothing prevented them from participating in such process. There was no lack of transparency in the evaluation process.
9. We have carefully considered the rival contentions of the parties.
10. The eligibility criteria (clause 5.1) stipulated time periods. The first sub-clause required a bidder to have minimum four years' experience of operating Toll Bridges/ Toll Roads. The fourth sub-clause stipulates that for the last three years ending on 31 March, 2018 the average annual toll collection made by the bidder should be at least Rs. 50 crores in all locations in India. Sub-clauses (b) and (c) do not mention any minimum time period for which the bidder must have experience of matters stated in the said sub-clauses.
11. We are of the considered view that there is no warrant for reading the four years time period specified in clause (a) into clauses (b) or (c). The clauses are disjunctive and not conjunctive. The word "and" is conspicuous by its absence in between the four sub-clauses. The respondent authorities did not interpret sub-clause (c) as requiring a bidder to have the experience of handling minimum 50,000 vehicles per day in any single Toll Bridge/ Toll Road at a single location in India for a period of four years. All that the authorities wanted to ensure, as we understand, is that the bidder is capable of handling at least 50,000 vehicles per day in any single Toll Bridge/ Toll Road and that it /he has such experience for a reasonable period of time. This was also the submission of the learned Additional Advocate General. The learned Single Judge rightly held that the interpretation given by the authorities is a plausible one and there is nothing to suggest that the respondents did not apply such interpretation uniformly across all tenderers. The private respondent produced before the authorities certificate issued by the National Highways Authority of India (NHAI) to the effect that it was capable of handling minimum 50,000 vehicles per day at a single Toll Bridge/Toll Road. The learned Single Judge further held that the interpretation given by the official respondents to sub- clause (c) does not militate against any of the clauses of the eligibility criteria and there is nothing perverse about such interpretation. We are in complete agreement with the views of the learned Single Judge.
12. Further, as the learned Additional Advocate General rightly submitted, the respondent authorities being the authors of the tender documents, their interpretation and understanding of the terms and conditions contained in such documents should be duly respected. There is no doubt in our mind that in case of commercial tenders, the authorities floating a tender are in the best position to decide how to construe a term of the tender or what meaning is to be ascribed thereto. In a particular case the Writ Court may not agree with the interpretation of a term of a tender by the authority issuing such tender, but that per se would not be a ground for the Writ Court to substitute the authority's interpretation with the Court's interpretation. While exercising the high prerogative writ jurisdiction under Article 226 of the Constitution, the High Court does not function as an Appellate Court. In this connection, one may refer to the decision of the Apex Court in the case of Afcons Infrastructure Ltd. - vs.-Nagpur Metro Rail Corporation Ltd. & Anr. reported in (2016) 16 SCC 818, wherein at paragraph 15 of the reported judgment it has been observed as follows:
"We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
13. In so far as the CVC guidelines are concerned, even assuming that the same apply to the facts of this case, we do not see that the same have been violated in any manner. Clause 11 of the tender document prescribes a time frame for undertaking the different steps in the tender process. The learned Single Judge has noted such time schedule and has come to the conclusion that admittedly the appellants/writ petitioners received an SMS that the bid was going to be opened on 30 March, 2019 at 1 P.M. No case has been made out by the appellants nor is there any material to suggest that the appellants could not log on to the concerned website and participate in the tender opening and evaluation process. It is not the case of the appellants that they did not have access to internet service. They were aware that as per the tender document the bids were to be opened for technical purpose on 30 March, 2019 at 1 P.M. The appellants should have been prepared by logging on to the website to participate in the process. We do not find from the materials on record that the appellants were prevented from participating in the evaluation process by any reason which can be attributed to the respondent authorities. We do not find any lack of transparency in the process of
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opening or evaluation of the bids. 14. Before concluding we repeat that the Writ Court while exercising the power of judicial review does not sit in appeal over the decision which is under challenge before it. As is frequently said, the Writ Court is not concerned with the decision but is concerned with the decision making process. We do not find any irregularity, infirmity, arbitrariness or perversity in the decision making process that is under challenge in the present proceeding. The learned Single Judge rightly dismissed the writ petition. We affirm the judgment and order of the learned Single Judge. Consequently, this appeal fails and is dismissed along with the connected application. The interim order that is subsisting stands vacated. There will be no order as to costs. 15. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree. Thottathil B. Radhakrishnan, C.J. Later, On pronouncement of the judgment, learned counsel for the appellants sought for an order of stay of the operation of the judgment. The prayer is considered and rejected.