1. This writ petition is filed seeking the following prayers :-
“(i) Issue a writ of certiorari or order or direction calling for the records leading to Exhibit P6 and P8 and quash the same.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 2 to 4 to consider the financial bid of the petitioner for the tender covered by Exhibit P1 Notice Inviting Tender.
(iii) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the third respondent is incompetent for being a part of the Evaluation Committee for Performance of Work (quality) and has no authority to reject the technical bid of the petitioner in terms of the CPWD Works Manual.” 2. Heard the learned Senior Counsel for the petitioner, the learned Senior Counsel appearing for the 6th respondent as well as the learned Assistant Solicitor General appearing for respondents 1 to 5.
3. The petitioner challenges the rejection of the tender submitted by it. It is submitted that the sole reason for rejection of the tender, after finding that the petitioner was pre-qualified, was that the works admittedly carried out by the petitioner were defective in quality. It is the case of the petitioner that the very same works which were considered for assessment had been accepted for other works by the Central PWD itself. It is stated that the rejection of the petitioner's tender on the ground that the quality of the works earlier performed by the petitioner was defective is a mala fide decision taken only to eliminate the petitioner from the field of choice and to award the contract to the 6 th respondent.
4. It is further contended that the action of the respondents is against the public interest since by rejecting the technical bid of the petitioner and not permitting the petitioner to participate in the financial bid stage, the respondents are causing a loss to the exchequer since the amount quoted by the petitioner was Rs.64 Crores less than the amount quoted by the 6th respondent. It is further contended that in view of the magnitude of the work in question, the work was a limited tender work and in such cases, the Central Vigilance Commission has specifically directed that once the pre-qualification stage is successfully overcome by a tenderer, there must be no elimination before the financial bid stage.
5. The learned Senior Counsel for the petitioner relies on a decision of the Apex Court in Siemens Public Communication Networks Private Limited and another v. Union of India and others [(2008) 16 SCC 215] in support of the contention that where the decision making process is arbitrary, irrational or unreasonable, then this Court would not be powerless to exercise jurisdiction under Article 226 of the Constitution of India, even in contractual matters concerning the State.
6. A detailed counter affidavit and an additional counter affidavit have been placed on record by the respondents 1 to 4. It is contended therein that the work in question is for the construction of a permanent campus and allied buildings for the IIT, Palakkad. The estimated cost of work was Rs.595,40,42,000/- with a time period of 27 months for completion. It is stated that Ext.P1 notice inviting tender specified that the initial criteria prescribed in clause 7.1 included experience of eligible similar works, solvency, financial turn over etc. It is stated that clause 8.1.3 of Ext.P1 specifically provided for the evaluation of the earlier works by a committee constituted by the approving authority on completed as well as ongoing works after due inspection. It is stated that marks for quality would be awarded based on inspection and on the parameters mentioned in Form D attached to Ext.P1 Notice Inviting Tender. It is stated that the said clause has been applied equally to all the bidders and that the committee, which had been constituted for the purpose at Ext.R1(a) which was a highly qualified technical committee, had conducted the inspection and found the quality of the work of the petitioner to be wanting in several respects. It is contended that in view of the fact that it was not a tender inviting authority which had conducted the inspections and since there is no challenge either to the constitution of the committee or to the inspection duly conducted by it, the grounds raised in the writ petition are completely unsustainable.
7. The decisions of the Apex Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. and another [2016 KHC 6606], Municipal Corporation, Ujjain and another v. BVG India Limited and others [2018 KHC 6222], Montecarlo Ltd. v. Ntpc Ltd. [2016 KHC 6701], Sam Built Well Pvt. Ltd. (M/s.) v. Deepak Builders and others [2017 KHC 6859] and of a Division Bench of this Court in Pushkarraj Constructions Pvt. Ltd. (M/s.) and others v. Silppi Constructions and contractors and others [2019 (3) KHC 566] are relied on to contend that where a technically qualified committee has rejected the bid of a tenderer on the basis of valid considerations referable to the conditions stipulated in the notice inviting tender, this Court, exercising its power of judicial review under Article 226 of the Constitution of India, would not be justified in interfering with such decisions, unless there are glaring instances of unreasonableness or mala fides vitiating such decision, which should be discernible from the materials on record.
8. The 5th respondent has also placed an affidavit on record supporting the contentions of respondents 1 to 4. The learned Senior Counsel for the 6th respondent has brought to my notice a decision of this Court in The Silppi Constructions Contractors v. Union of India (UOI) and others [2019 (11) SCALE 592] to contend that the power of judicial review cannot be exercised in contractual matters unless the decision is shown to be arbitrary, capricious or perverse.
9. Having considered the contentions advanced, I am of the opinion that the issue to be considered falls in a very narrow compass. The question is whether the rejection of the bid submitted by the petitioner relying on clause 8.1.3 of Ext.P1 Notice Inviting Tender was justifiable. Clause 7.0 of Ext.P1 provided the initial criteria for eligibility. In this case, it is not in dispute that the petitioner as well as the 6th respondent met such criteria. The rejection of the petitioner's bid is only on the ground that the subject works which had been offered by the petitioner to support his experience did not meet the quality criteria as evaluated by the committee constituted under Ext.P1.
10. Clause 8.1.3 of Ext.P1 reads as follows :-
“8.1.3 For attribute at 8.1.2 (d) (i.e performance on works - quality): Evaluation of the performance of contractors for eligibility shall be done by a Committee constituted by NIT approving authority. The assessment of quality for completed as well as ongoing works submitted by the bidders shall be got inspected by the committee which may consist of client or any other authority as decided by NIT approving authority. The marks for the quality shall be given based on this inspection and the parameters mentioned in Form D.”
It is specified therein that marks have to be awarded by the committee constituted by the NIT approving authority based on the inspection conducted by them and on the parameters mentioned in Form D. Form D is available at page No.38 of Ext.P1. In the counter affidavit filed on behalf of respondents 1 to 4, Ext.R1(a) proceedings constituting the expert committee as provided in clause 8.1.3 is produced. The learned ASG has also produced for inspection of this Court the Form D assessment as completed by the committee, which has resulted in the award of only 16.83 marks to the petitioner and which has resulted in the petitioner being eliminated from the bid process. The details of Form D assessment in respect of the 6th respondent is also produced for perusal.
11. On a consideration of the materials placed on record and the specific pleadings on the point, I find that a committee had been duly constituted under clause 8.1.3 and that an assessment had been carried out by the said committee with regard to the completed and ongoing works of all the tenderers. The committee, after evaluation, had assigned marks for the works in question in Form D with regard to each of the parameters. The result of such evaluation was that the petitioner failed to secure 50% marks needed with regard to the quality of the works, completed and ongoing. On a consideration of the pleadings and the materials on record, I am of the opinion that in the absence of any pleadings as to the assessment conducted by the committee or the constitution of the committee, the contention raised that since th
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e very same works had been subjected to assessment in earlier proceedings and had been found to be satisfactory, cannot be a reason to successfully challenge the elimination of the petitioner from the bidding process on the basis of an assessment carried out by a committee constituted for the said purpose in terms of clause 8.1.3. The assessment by the committee would have been on different dates or at different points in the same construction and would definitely be a subjective analysis and the award of marks would therefore be an exercise which is not open to a re-examination by this Court under Article 226 of the Constitution of India. In view of the fact that an assessment had admittedly been carried out with regard to the quality of works uniformly in respect of all the tenderers, I am of the opinion that the contentions raised as to mala fides cannot be accepted. In the above view of the matter, the writ petition fails and the same is accordingly, dismissed.