w w w . L a w y e r S e r v i c e s . i n



Tata Projects Limited, Rep. by its Company Secretary & Another v/s Karnataka Power Corporation Limited, Rep. by its Managing Director & Others


Company & Directors' Information:- KARNATAKA POWER CORPORATION LIMITED [Active] CIN = U85110KA1970SGC001919

Company & Directors' Information:- THE TATA POWER COMPANY LIMITED [Active] CIN = L28920MH1919PLC000567

Company & Directors' Information:- TATA PROJECTS LIMITED [Active] CIN = U45203AP1979PLC057431

Company & Directors' Information:- TATA PROJECTS LIMITED [Active] CIN = U45203TG1979PLC057431

Company & Directors' Information:- POWER COMPANY OF KARNATAKA LIMITED [Active] CIN = U40101KA2007SGC043640

Company & Directors' Information:- N T POWER PROJECTS ( INDIA ) PRIVATE LIMITED [Active] CIN = U40300TG2015PTC099992

Company & Directors' Information:- H S POWER PROJECTS PRIVATE LIMITED [Active] CIN = U31909DL2003PTC121326

Company & Directors' Information:- S M POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40101KA2007PTC043140

Company & Directors' Information:- M R K POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40108TG2009PTC064610

Company & Directors' Information:- V B S POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40101HP2007PTC030760

Company & Directors' Information:- K M M POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40101UR2008PTC032741

Company & Directors' Information:- K A J POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40105UR2008PTC032742

Company & Directors' Information:- J J POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40108KA2009PTC050480

Company & Directors' Information:- POWER PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31101DD1995PTC001793

Company & Directors' Information:- N T POWER PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U40102TG2015PTC098830

Company & Directors' Information:- R P POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74900UP2009PTC038185

Company & Directors' Information:- R J POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40102DL2013PTC258320

Company & Directors' Information:- T & A POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40106DL2015PTC281726

Company & Directors' Information:- S C P POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40109DL2005PTC133742

Company & Directors' Information:- POWER ON PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900AP2015PTC097760

Company & Directors' Information:- T V R POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40109AP2006PTC052062

Company & Directors' Information:- R Y POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40104KA2012PTC066217

    Writ Petition Nos. 2535, 505 of 2013 (GM-TEN)

    Decided On, 26 February 2013

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE A.S. BOPANNA

    For the Appearing Parties: M/s. Crest Law Partners, Dhyan Chinnappa, J.N. Ajay for M/s. Pragathi Law Chambers, Advocates, Venkatesh Dhond, Sr. Counsel for R.V.S. Naik, Advocate, Udaya Holla, Sr. Counsel for Shashikiran Shetty, N.S. Narasimha Swamy, for M/s. Swamy & Singh, Advocates, K.G. Raghavan, Sr. Counsel for Shashikiran Shetty, Advocate.



Judgment Text

(This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for records from the R-1 of the impugned tender evaluation and all records and bids submitted in relation to the tender notification vide Annexure-A dt. July 2012 and etc.

This writ petition is filed under Article 226 of the Constitution of India, praying to call for the records from Respondent No.1 pertaining to the impugned tender evaluation and all records relating to tender notification & set aside the impugned tender evaluation and award of tender by Respondent No.1 in favour of Respondent No.2 in respect of tender notification [copy not produced] and etc.)

1. The petitioners in both these petitions i.e., ''L&T'', the petitioner in W.P.No.505/2013 and 'Tata Projects' the petitioner in W.P.No.2535/2013 had responded to the tender notification No.CEGSW/Bidadi/EPC/001 invited by the first respondent (''KPCL'' for short) for award of work for construction of 700 MW +/- 20% combined Cycle Power Project at Bidadi, Ramanagara District. In addition to the petitioners, ''Alstom'' the respondents No.2 and 3 respectively in both the above said petitions and Bharat Heavy Electricals Ltd., ('BHEL' for short) another respondent had responded to the said tender.

2. The parties would be referred to by their abbreviated names indicated above during the course of this order for the purpose of convenience and clarity.

3. Though ''L&T'' in W.P.No.505/2013 have sought for setting aside the tender evaluation and the award of tender by 'KPCL' in favour of 'Alstom', the factual position is that the tender has not yet been awarded and as such, the grievance essentially is against the evaluation process and negotiation with 'Alstom' to the exclusion of 'L&T'. The grievance put forth by 'Tata Projects' in W.P.No.2535/2013 is also to the same effect, but they have set out grievance against consideration of both 'Alstom' and ''L&T''. Hence, both the petitions were heard together.

4. The fact that the bids were opened on 10.10.2012 is not in dispute. 'L&T' is stated to have quoted the lumpsum price of Rs.2021.51 crores, while 'Alstom' is stated to have quoted Rs.2215.40 crores. Thus 'L&T' had quoted Rs.193.9 lower than 'Alstom'. The prices quoted by the other tenderers are in the higher order thereafter. Subsequent to the same, 'KPCL' was required to evaluate all the bids as per the procedure contemplated in Annexure-8 of Section A2 and clause 23.4 of Section A2 to arrive at L-1 and process the same further. While carrying out such evaluation, the 'discounting' and 'loading' in respect of the different items quoted was to be made keeping in view the requirements of the tender procedure and the quote being made within the limits of permissible deviation. The grievance of ''L&T'' is that in the process of evaluation, an inappropriate method has been followed with the intention of making 'Alstom' as L-1 so as to negotiate with them though 'L&T' had quoted less. This is done instead of the evaluation being carried out in respect of all the bidders applying the same yardstick and identifying the L1 after comparative evaluation of all the tenderers and negotiating with them. The present procedure has caused prejudice to the petitioners as they have been excluded even before carrying out evaluation. The specific grievance of 'L&T' with regard to the negotiations with 'Alstom' being contrary to the requirement is set out in para 15 of the petition which reads as hereunder:

"(i) Multi-party contracting: At Sl.No.49 of its replies to pre-bid queries dated 18.09.2012, Respondent No.1 had inter alia stated that it shall only enter into contract with single party (legal entity) for all the works, though divided into separate contracts, for making the contracts most tax efficient for Respondent No.1. However, the Petitioner has reliably learnt that although Respondent No.2 has submitted a single bid, has requested that a separate contract be entered into with its Indian subsidiary in respect of onshore works, apparently with a view to making the bid more tax efficient for Respondent No.2 thus causing substantial loss to the exchequer to the tune of about Rs.50 crore. It is submitted that the said Indian subsidiary is a separate legal entity and is neither a qualified bidder nor a consortium partner of Respondent No.2 for this tender. Therefore, the request of Respondent No.2 to Respondent No.1 of such nature is a material deviation to the above requirement of Respondent No.1, rendering the bid liable for rejection. A true copy of the extract of the Replies to Pre-Bid Queries issued by Respondent No.1, is produced herewith as ANNEXURE-H; and,

(ii) As per clause 4.0 of Section A2 of tender documents and pre-bid clarification dated 18.09.2012 issued by Respondent No.1, the completion schedule for the works shall be 30 months from the date of letter of acceptance by the successful bidder. It is submitted that Commencement date as defined and release of payment by Respondent No.1 to the successful bidder are independent of each other. However, Respondent No.2 has submitted the draw down schedule linking Commencement Date with the release of first payment by Respondent No.1, resulting in either pushing back or postponing the implementation of the project beyond the stipulated period of 30 months or Respondent No.1 having to release payment on the date of letter of acceptance, both of which are clearly opposed to the intent of the Tender. As per clause 11.8 of section A2 of tender documents, deviation in implementation period is a bid rejection criterion. Therefore under clause 11.8 of Section A2, Respondent No.1 has no option but to declare the bid of Respondent No.2 as non-responsive and reject the same. However, Respondent No.1 has not done so for reasons best known to it. True copies of the relevant Clauses i.e. Clause 4.0, 11.8 and 13.4 are collectively produced herewith as ANNEXURE-J."

5. In addition, an affidavit has also been filed on behalf of ''L&T'' setting out details to claim the entitlement of 'L&T' to be considered as L1 and negotiate with them.

6. In the petition filed by 'Tata Projects', they have also referred to in detail with regard to the deviations made both by 'L&T' and 'Alstom' and have therefore classified the offers made by both of them as non- responsive which according to them is liable to be rejected outright. In that regard, they have referred to clause-24.3 of ITB and have contended that the deviation affecting prices directly should be considered as non-responsive and such bids should not be processed.

7. The 'KPCL' as also 'Alstom' which are common respondents in both the petitions have filed their objection statement raising issues with regard to the maintainability of these petitions at this stage. 'KPCL' more particularly has made detailed reference to the Karnataka Transparency in Public Procurements Act, 1999 ('KTPP Act' for short) and has contended that no cause has arisen for filing the instant petition. The said objections are filed insofar as maintainability and have sought leave to respond to the other contentions if the same becomes necessary. The process of evaluation and consideration presently adopted is however sought to be justified by contending that the bids of all the tenderers were evaluated and a report was prepared which was examined by the Tenders Scrutiny Committee. Thereafter the Technical Committee in order to obtain confirmation has got it verified by the independent firm of Chartered Accountants. All of which were placed before the Tender Accepting Authority for further consideration. According to them, 'Alstom' was found to be the lowest bidder and as such negotiations are being carried on with them but not finalized either by accepting their bid or by rejecting the others. The Board of Directors which is the Tender Accepting authority has examined the same in the Board meeting and on accepting the evaluation reports, decided to secure clarification in respect of observations. Hence, it is contended that all procedures have been followed and the Board is seized of the matter and is yet to take a decision; the instant petitions are premature. Hence they seek dismissal of the petitions.

8. Further 'Alstom' has also filed their statement of objections and sought to contend that the bid made by them is in order and that insofar as the instant petitions, the 'L&T' and 'Tata Projects' can only avail the appellate remedy if ultimately the contract is awarded to 'Alstom'. Even otherwise, since the petitioners are making out a case as if it has been awarded, even in such event the writ petition would not be maintainable as there is alternate remedy of appeal.

9. Since a threshold contention with regard to the petitions being premature and not maintainable is very strongly urged by 'KPCL', the said question is to be considered at the outset as it would result in a situation of there being nothing more to examine on merits at this stage, if the contention is accepted. On the other hand, if any further consideration of the matter is required, 'KPCL' would have to be provided opportunity to bring further material on record.

10. On the said aspect, elaborate arguments were heard from Sri Venkatesh Dhond, Sri S.S.Naganand, Sri Udaya Holla, Sri K.G.Raghavan, learned senior counsel, Sri Srinivas Raghavan and Sri Dhyan Chinnappa, learned counsel appearing for the respective parties.

11. Firstly though the contentions urged on behalf of 'Alstom' would suggest that the instant petitions are not maintainable in view of the alternate remedy being available under Section 16 of the KTPP Act and the decisions in the case of Tin Plate Company of India Ltd., vs. State of Bihar and ors (AIR 1999 SC 74); in the case of Kanaiyalal Lalchand Sachdev & Others - vs- State of Maharashtra and Others (2011(2) SCC 782); in the case of Rajkumar Shivhare -vs- Asst. Director, Directorate of Enforcement and Another (2010 (4) SCC 772) and in the case of Kirloskar Brothers Ltd., -vs- Karnataka Niravari Nigam Limited and Others (2009(5) K.L.J. 608) were relied upon, I am of the opinion that the said question would not arise for consideration at this stage in view of the categorical stand adopted by the ''KPCL'' that the tender has not been awarded to ''Alstom'' and the process of negotiation is still under progress. If that be the position, the appellate remedy would not come into play. Therefore, even the contentions put forth by the learned senior counsel on behalf of 'L&T' by placing reliance on the decisions in the case of Whirlpool Corporation -vs- Registrar of Trade Marks, Mumbai (1998(8) SCC 1) and the case of Popcorn Entertainment and Another -vs- City Industrial Development Corporation and Another (2007(9) SCC 593) that the alternate remedy in the instant case cannot be considered as an efficacious one in view of the Appellate Authority itself having a say in the matter of award of tender also would not arise for consideration at this stage. Hence, the contentions in that regard are left open to be urged at an appropriate stage, if the need and the occasion arises.

12. Therefore, though a statutory bar or an alternate remedy as contemplated in law does not arise at this stage, the question still would be as to whether the petitions are premature and/or as to whether this Court while considering the petition under Article 226 of the Constitution of India is expected to interfere at this stage when the contract has not been awarded nor any of the tenderers are expressly rejected.

13. Since large number of decisions have been relied upon by the learned senior counsel and the other counsel appearing on behalf of all the parties, the legal position in that regard is to be analysed at the outset and in that background, the fact situation arising herein needs to be noticed. To contend that the instant petitions are premature, the decision in the case of Mrs. Kunda S.Kadam vs. Dr.K.K.Soman and ors (AIR 1980 SC 881); in the case of Chanan Singh vs. Registrar of Co-operative Societies, Punjab and others (AIR 1976 SC 1821) and in the case of G.Sarana vs. University of Lucknow and others (AIR 1976 SC 2428) are relied on. It is contended that when a decision is yet to be taken by the Tender Accepting Authority, there would be no cause of action and as such the petition is premature. In the cited cases, they were matters relating to selection and disciplinary proceedings wherein the competent authority was yet to take a decision wherein it was held that until a decision is taken by the competent authority one way or the other, there would be no cause to challenge the action.

14. Further, the learned counsel appearing for 'KPCL' relied on the decision in the case of Siba Prasad Padhi vs. State of Orissa and others (2004(I) OLR 200); in the case of Harish Industries Pvt. Ltd vs. The Bihar State Road Transport Corporation and others (2003(3) PLJR 585) and in the case of M.Vasudevan vs. Chennai Metropolitan Development Authority (W.P. No.2475/2011) and contended that a final decision in any event has not been taken by the ''KPCL'' and until such time, the same cannot be challenged. Particular reference is made to the Madras High Court decision that the Court while considering a similar provision as contained in the KTTP Act was of the view that only when the tender bulletin is issued, the aggrieved person would be entitled to challenge the same in accordance with law. Hence, in the said case it was held that the petition was premature.

15. The learned senior counsel for 'L&T' on the other hand relied on the decision in the case of Siemens Public Communication Networks Pvt. Ltd. -vs- Union of India & Ors (2008 (16) SCC 215) to contend that in similar set of circumstance as in the instant case, the Hon'ble Supreme Court had entertained the petition and had examined the issue, though in the said facts, the Hon'ble Supreme Court did not choose to ultimately accept the contention of the appellant. The decision in the case of Ganapati RV-Talleres Alegria Track Pvt. Ltd.-vs- Union of India & Another (2009 (1) SCC 589) was also relied on by the learned senior counsel to contend that even though the Delhi High Court dismissed the petition, the Hon'ble Supreme Court had not only entertained the petition but also directed the evaluation committee to consider the bid of the petitioner therein along with that of other bidders.

16. A cumulative perusal of the decisions relied upon by both the sides would indicate that the overwhelming opinion is that the Court will not interfere unless the cause to do so has arisen i.e., until the decision one way or the other is taken by the competent authority who is required to take the decision and such decision is in favour of one and has effected the other. In the case of Siemens, though the Hon'ble Supreme Court examined the matter, it did not interfere though on opening the bid, the petitioner therein who had quoted the lowest but was not treated as the L-1 after evaluation. The Hon'ble Supreme Court has no doubt held that judicial review is possible when the decision making process is so arbitrary or irrational. In the said case, the discussion with the petitioner was excluded. However, in the instant case, evaluation was made by the Committee itself taking note of the requirement and the bids made and thereafter the discussion has commenced with L-1 but the other tenderers have not been rejected. Therefore, on opening the bids, the evaluation procedure has been same for all, though there is serious dispute with regard to the method adopted in arriving at L-1 by applying different standards of 'discounting' and 'loading' for different tenderers. That aspect of the matter no doubt would arise for consideration only after all evaluations and negotiations are complete and a decision relating to acceptance of any tender is made. Any examination at this stage based on apprehension is only fishing for discrepancies since the petitioners are also contending based on reliable information and not on concrete material. Further, unless this Court comes to a conclusion regarding the imminent necessity of probing the matter further, it would not be necessary for the 'KPCL' to divulge any further details at this stage since the process is still under way. In the decision in the case of Ganapathi RV-Talleres, it was a case where the petitioner therein had been communicated that he had not met the eligibility criteria of the tender and therefore the commercial bid will not be considered. Hence, a cause had arisen to approach the Court due to rejection and the Court directed consideration along with the other tenderers but, in the instant case, there is neither rejection nor acceptance at this stage.

17. The learned senior counsel for 'Alstom' apart from contending that the petition is premature also sought to impress upon this Court the restraint to be exercised by Courts with regard to contractual matters due to lack of expertise and there being technical issues especially at a stage when it is not yet finalised. The decisions in the case of TATA Cellular -vs- Union of India (AIR 1996 SC 11); in the case of TATA Iron and Steel Co.Ltd -vs- Union of India & Ors (AIR 1996 SC 2462); in the case of Federation of Railway Officers Association & Ors -vs- Union of India & Ors (AIR 2003 SC 1344) and in the case of Siemens Public Communication Networks Pvt. Ltd. -vs- Union of India & Ors (AIR 2009 SC 1204) are relied on in support of that proposition. In the instant case, at this stage, the question of meddling with the decision of the experts would not arise since this Court is examining the issue at a preliminary stage and not with regard to the details of the tender requirements and the scope of work but only to examine whether the petitioners have been unjustly excluded. At this stage, what is to be examined even if the petition was not premature, was only on the aspect as to whether 'KPCL' could have excluded other tenderers and negotiated only with 'Alstom' and in that regard, the allegation of deviation being permitted could be accepted at this stage.

18. In justification of the procedure adopted, the learned counsel for the 'KPCL' would contend that 'KPCL' through its tender scrutiny committee has evaluated the tenders of all the tenderers and the further process is being undertaken. In such circumstance, it would not be appropriate for the Court to sit in judgment over the Technical issues which has been examined by the Technical Committee, more particularly when the process is not complete. There are several technical issues in the implementation of project and the situation for judicial review even to the limited extent has not arisen. To buttress the said contention, the learned senior counsel for 'Alstom' has placed reliance on the decision of the Hon'ble Supreme Court in the case of Bihar Public Service Commission and ors vs. Kamini and others [(2007)5 SCC 519]; in the case of M/s G.J.Fernandez vs. State of Karnataka and ors (AIR 1990 SC 958) and in the case of BSN Joshi and Sons Ltd., vs. Nair Coal Services Ltd., and ors (AIR 2007 SC 437).

19. The above cited decisions would indicate that in technical matters, the decision of the experts in the field would have to be taken into consideration when such experts have noticed all aspects and have taken a decision. In the instant facts, ''KPCL'' has contended that all such decisions have been taken at the appropriate level and even the assistance of the Chartered Accountants who are experts in evaluation has been availed for proper evaluation. The learned senior counsel for ''Tata Projects'' would however rely on the decision of the Division Bench of this Court in the case of 'KPCL' vs. SICAL Logistics Ltd., and ors (ILR 2007 Kar 226) to contend that in the said case it is held that the tender inviting authority, tender scrutiny committee and finally the tender accepting authority alone have a role to play and there was no place for a tender process committee to take part in the evaluation process as has been done in that case. Hence, it is contended that the evaluation itself is defective in the instant case.

20. On the said aspect, it is necessary to notice that in the case of M/s. G.J.Fernandes, the Hon'ble Supreme Court had approved the satisfaction reached by the person-in-charge of contract in consultation with an independent agency like Tata. Further, in the case of Spanco Telesystems and Solutions Ltd., vs. State of Karnataka and ors (2008(5) Kar.L.J. 521), it has been held that if the assistance of a sub-committee to help the tender scrutiny committee to make technical evaluation is taken, the same would not be contrary to the required procedure. What is to be prima facie noticed herein at this stage is not the correctness or otherwise of the evaluation made, since the stage has not arisen for the same. But, it would have to be seen as to whether the requisite procedure has been followed and as to whether any one of the tenderers has been excluded from the zone of evaluation in an irrational manner without basis and whether the process is being undertaken in an arbitrary manner having disregard to all established principles.

21. That apart the learned senior counsel for 'Alstom' has further relied on the decision in the case of Raunaq International Ltd., vs. IVR Constructions Ltd and ors (AIR 1999 SC 393) and in the case of Jagdish Mandal vs. State of Orissa and ors [(2007)14 SCC 517] to contend that even in a situation where the contract has been awarded and even in such circumstance while undertaking the exercise of judicial review in a writ petition against a contract awarded by public authority, the Court should be satisfied that there is genuine public interest involved in entertaining such petition. The possibility of delay in the project by such interference should also be kept in view.

22. The combined reading of all the decisions on different points referred above would boil down to the position that as a rule, the Courts would not entertain the petitions when no decision has been taken by the competent authority effecting the right. The exception however would be when it is shown that the decision making process itself is so arbitrary and irrational, that no authority acting reasonably will take such decision to the extent it is taken. Even in such case, the Courts would only peruse the decisions taken by experts in the field to exclude arbitrariness or unreasonableness, if evident on the face of it, but would not substitute its opinion over the experts' opinion and step beyond institutional capacity. Mere deviation or relaxation or price difference should not be the basis for interference as the same are also permissible depending on its nature and interference should be only if there is substantial public interest. When that is the yardstick to be applied to examine the decisions even at a stage when the awarding of the contract is complete, the interference when the process is still going on should be with greater restraint and minimal.

23. In the above backdrop, what requires to be noticed is as to whether even if the contentions which have been put forth by the petitioners are looked into at this stage, would the process call for interference at this juncture or should the petitioners avail of their remedies after the process is complete, if any action is taken to the detriment of the petitioners. In that regard, a perusal of the papers in the background of the contention put forth by the learned senior counsel for 'L&T' would indicate that the reference in that regard is made to Section 8(2) i.e., the instructions to the bidders (ITB) vide revised Annexure-8. The price evaluation for fixing the price has been indicated and the loading for the deficiencies is also provided therein. The manner of evaluation is indicated in clause 4. In that regard, it is also contended that vide clause 11.8, it has been clearly indicated that the issues mentioned therein will not be allowed for the purpose of commercial deviation. It is therefore contended that from the bid of 'Alstom', it is seen that there are several deviations and yet the 'KPCL' is proposing to consider the same by evaluating them as L-1. To contend regarding this aspect, reference is made to Annexure-G wherein the comparative evaluation of the bids at the bid opening meeting is stated to have been made. It is in that context contended that 'L&T' had quoted a sum of Rs.2021.51 crores while 'Alstom' had quoted Rs.2215.40 crores and as such the bid of ''L&T'' was about 193.9 crores lower than that of 'Alstom'.

24. It is in that context contended that it is only due to defective loading made on 'L&T' and wrong discounts granted to 'Alstom', they have now been placed as L1 as per the contention of 'KPCL' which is not acceptable. It is more specifically contended that insofar as the commencement date, 'Alstom' has indicated 30 days subsequent to the date and insofar as the water treatment, the chlorination system has been provided by the 'Alstom' which is a deviation and also with regard to consortium, the 'Alstom' has indicated that the contract has to be given in a different name which is contrary to the requirement of the tender. It is in that context contended if these aspects were taken into consideration and a similar benefit had been provided to 'L&T', the bid would be much lower, while on the other hand by allowing these deviations to 'Alstom', the same has not only caused loss of revenue to the Government, but the bid itself is defective. On these aspects, specific reference has been made by 'L&T' with regard to the actual loss that may be caused. To drive home the point the learned senior counsel has made reference to the pre-bid queries made by the tenderers and the reply given by the 'KPCL'. In that regard, specific reference is made to the query relating to award of contract wherein it was clarified that 'KPCL' will enter into contract with single party for all works. But, 'Alstom' is presently seeking award of contract in favour of a different entity in India. Similar other queries and the answer given are referred to. It is therefore contended that despite the position being clarified on certain aspects in the pre-bid meeting, substantial deviations have been permitted to 'Alstom' which probably is the reason for considering them as L- 1 subsequent to the evaluation.

25. Insofar as these aspects of the matter, there is no specific material available to come to a conclusion as to the extent and manner of deviation and whether such deviations have been accepted by 'KPCL' without demur and as to whether the loading for deviation and discounts on other aspects has been done in a manner as alleged by 'L&T'. The learned senior counsel would however contend that the 'KPCL' is deliberately withholding the information by only filing the preliminary objections instead of justifying their action on merits. The learned counsel for 'KPCL' would however seek to rely on Rule 23 of the KTPP Rules, 2000, to point out that the Tender Inviting Authority should ensure confidentiality of the process of tender evaluation. Though the said provision cannot act as a bar to provide information to this Court, certainly in the evaluation process, such confidentiality requires to be maintained to prevent the tenderers from interfering with the process and manipulating the same. In the present circumstance, 'KPCL' has indicated the nature of evaluation that has been made and procedure followed. Though as noticed it would be open for this Court to seek for information at any stage, the contention of 'L&T' with regard to 'Alstom' being favoured is based on certain assumptions relating to the inappropriate manner of loading and discounts being provided which stems from the basis that when the bids were opened, the price quoted by 'L&T' was much lower, but presently 'Alstom' has been treated as L1. Since the proceedings before this Court in these petitions is at a stage prior to award of contract, I am of the opinion that it is not a stage where this Court is expected to make a roving inquiry by seeking for information relating to the evaluation made by experts by throwing open the entire gambit at this stage and provide an opportunity to the rival tenderers to fish for evidence and pick holes, more particularly at a stage when 'KPCL' is contending that the matter has not been finalized and such casual interference if entertained would become the order of the day since in every evaluation process, one or the other would have some grievance and no process could be finalised. Even assuming the contentions put forth by 'L&T' is substantially true, the judicial review at the appropriate stage and forum would be available and it could be made in the matter subsequently instead of stalling the process by examining at every stage. This is so for the reason that even if all materials are placed before this Court, considering the technical nature and volume of the project, there would be several aspects which would go into the evaluation of the bids for the proper completion of the work and the instant case is not a simple case of comparing the difference of price for supply of certain goods, the quality of which are held to be similar. Therefore, the exercise of sitting in judgment over the wisdom of the experts should be avoided at this stage.

26. It is no doubt true that in view of the contention put forth by 'L&T' that at the time of opening of the bids, there was a substantial difference of Rs.193.9 crores, at first blush, it would appear that though there was huge difference and yet 'Alstom' being presently considered as L1 could be contrary to public interest and this Court may have to step in, however, the contentions put forth on behalf of 'Tata Projects' in the connected petition by relying on the decision in the case of Larsen and Toubro Ltd and another vs. Union of India and ors [(2011)5 SCC 430] that in the said decision the Hon'ble Supreme Court has held as to what could be considered as responsive bid and in that circumstance, when they have contended that even the bid submitted by ''L&T'' cannot be considered as responsive bid due to deviations, this aspect of the matter also cannot be ignored.

27. In that regard, 'Tata Projects' have also made reference to Annexure-8 and clause 11.8 of ITB to contend that where there are commercial deviations, the bids are liable for rejection. Stating so, they have alleged that 'L&T' have deviated on several specifications such as break down price of taxes and with regard to long term parts management as payment has been demanded even prior to initial fir

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ing. The different equivalent operating hours taken for quoting long term parts management has also been referred. Several other similar flaws in the bid submitted by 'L&T' as well as 'Alstom' has been referred to and they have contended that only the bid submitted by them is as per the requirement. These aspects of the matter would indicate that each of the tenderers have been alleging against the other about submission of non-responsive bid by the other and in that circumstance though 'L&T' sought to contend that there was a huge difference of price between their bid and that quoted by 'Alstom', the contention raised by 'Tata Projects' if taken into consideration would mean that the contention of 'L&T' also cannot be accepted on its face value at this juncture. In such circumstance, it is for the expert body to evaluate all the bids and take a decision at the first instance. Clause 20 of ITB is referred relating to the procedure that would be followed by 'KPCL' towards examination of bids with regard to the same being complete and the consideration of errors, if any. The method of short-listing is also provided. Vide clause 23 the evaluation and comparison of the bid is contemplated and the right of rejection is also with 'KPCL'. As of now, none of the bidders have been rejected. 28. In the above background, the statement filed by 'KPCL' would disclose that on opening the price bids of all the four bidders, all of them have been evaluated and an evaluation report was prepared which was examined by Tender Scrutiny Committee and along with the report, it was put up to Technical Committee. Further, the evaluation made was also got verified by an independent firm of Chartered Accountant. All the evaluations and the reports have been placed before the Tender Accepting Authority which is the Board of Directors and the further procedure is under way. The learned senior counsel for the petitioners while referring to the averment in the objection statement and the recording in the Board meeting dated 04.12.2012 sought to contend that the discussions with regard to the technical and commercial deviations after evaluation of the tenders would not be sustainable. Despite the same, keeping in view the deviations being alleged against one another, and also taking note of the fact that all the tenders have been evaluated, if at all there are any errors in the manner of evaluation and if judicial review is necessary, the same could only be made in an appropriate proceedings at an appropriate stage and not when the process is not yet completed. 29. In the light of the above discussions, though at this stage this Court cannot come to a conclusion as to whether the bids submitted by any of the tenderers is contrary to the requirement under the instructions to the bidders and also with regard to the correctness or otherwise of the evaluation made, considering that a detailed procedure has been adopted by 'KPCL', any further examination of the matter would not arise at this stage. This conclusion shall not mean that the validity of the procedure or the evaluation of the bid is upheld. This Court has exercised restraint in undertaking a detailed examination at this stage since the grievance made in the petition is premature. The contentions are left open to be urged at the appropriate stage in appropriate proceedings. 30. In the result, the petitions being premature are disposed of accordingly. No costs.
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