Delhi High Court
Elgi Sauer Compressors Ltd. And ... vs Bhel And Anr. on 2 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.07.2017
Pronounced on: 02.08.2017
+ W.P. (C) 2948/2017, CM APPL.12848-12849/2017
ELGI SAUER COMPRESSORS LTD. AND ANR. ..... Petitioners
Through: Mr. Rajeev Mehra, Sr. Advocate with
Mr. Manish Jha and Ms. Shruti Aggarwal,
Advocates.
versus
BHARAT HEAVY ELECTRICALS LTD AND ANR..... Respondents
Through: Mr. Atul Shankar Mathur with Ms. Priya
Singh, Advocate for R-1.
Mr. Anil Airi, Sr. Advocate with Mr. Krishan
Kumar, Mr. Atul, Ms. Sukanya Lal and Mr.
Himanshu, Advocates for Resp-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P. GARG
MR. JUSTICE S. RAVINDRA BHAT
%
1. The petitioner (hereafter referred to as "Elgi") is aggrieved by the
decision of the Bharat Heavy Electricals Limited (hereafter "BHEL"),
rejecting its offer/tender; BHEL had invited bids for HP Air Compressors
[hereafter "Equipments"] for the Pranahita-VI, VIII, X and XI Project.
2. BHEL issued the Notice Inviting Tenders (NIT) for selection of an
agency for the purpose of Compressors on 08.09.2016. The NIT comprised
two systems - Part-I, i.e. the techno-commercial bid and Part-II, i.e. price bid.
3. Both parts of the bid were to be kept in two separate sealed envelopes
and clearly described as such. The tender enquiry number and due date were
also to be indicated on the envelopes. The main purpose for the two part
system was that in the event of a deviation in Part-I, the bid was not to be
rejected at the outset but the tenderer was to be given an opportunity through
clarifications sought in terms of clause 2 of the NIT.
4. The relevant tender conditions - comprised in the general conditions
of the contract (GCC) of the NIT and the instructions for the bidders relevant
for the purpose of these proceedings are extracted below:
"1. General: These general terms & conditions shall apply to
all enquiries, notice inviting tenders, request for quotations
concerning the supply of goods and/or rendering of services to
Bharat Heavy Electricals Ltd., Bhopal (hereinafter referred to
as BHEL of the Purchaser) or its Projects/Customers.
General Instructions - Common for Indigenous & Foreign
enquiries
*********** ************
2. Bid opening:- The offers received upto 11.00 AM (IST)
on due date in the tender room shall only be accepted. The
„Techno-commercial‟ part of the bid i.e. Bid Part-I of the offers
shall be opened on the due date of tender opening.
Clarifications wherever required on this part shall be obtained
from the bidders for their evaluation. The price bid Part II of
such vendors alone shall be opened whose techno-commercial
bids are found acceptable. The date of „Price bid-Part II‟
opening shall be intimated later on.
Alternatively:BHEL reserves the right to go for Reverse
Auction (RA) instead of opening the sealed envelope price bid,
submitted by the bidder. This will be decided after techno-
commercial evaluation. All bidders to give their acceptance for
participation in RA. Non-acceptance to participate in RA may
result in non-consideration of their bids, in case BHEL
decides to go for RA. In case BHEL decides to go for Reverse
Auction, only those bidders who have given their acceptance to
participate in RA will be allowed to participate in the Reverse
Auction. Those bidders who have given their acceptance to
participate in Reverse Auction will have to necessarily submit
'online sealed bid'" in the Reverse Auction. Non submission
of 'online sealed bid' by the bidder will be considered as
tampering of the tender process and will invite action by
BHEL as per extant guidelines in vogue. Pls. note that the H1
bidder (whose quote is highest in online sealed bid) will not be
allowed to participate in further RA process."
*********** ************
A Sealed bids are invited for scope of Supply/Services as
detailed in the enquiry. The quotation should be neatly typed
and free from over writing/erasures. Any correction or
addition must be authenticated. The bid should be submitted in
English or Hindi language. Relevant enclosures, supporting
documents, catalogue, samples, if any, as required as per
Notice Inviting Tender (NIT) conditions shall be sent along with
technical offer. Rate should be quoted in the units asked for in
the enquiry. The rates should be quoted both in figures and
words. In case of discrepancy in figures and words, the rates
quoted in words shall be considered.
*********** ************
I Bidder can also submit offer through email, if called for
in the enquiry, at the email address indicated in the enquiry.
Such email offers shall be sent only on designated email-id to
reach before 11.00 hrs of the tender due date. BHEL will not
be responsible for incomplete offers and the ones delivered late
through e-mail.
J Bid in single part or techno-commercial bid in two part
system (as the case may be) will be opened on the due date. In
case of two part bid, price bids of techno-commercially
acceptable bidder (s) only shall be opened on the assigned date,
for which separate intimation will be sent to the acceptable
bidders.
*********** ************
15 Payment Terms:
Indigenous: 100% payment within 90 days of receipt (45
days of MSE/NSIC registered suppliers as per relevant act in
force), subject to acceptance of material at BHEL, on direct
presentation of the documents.
A In case of dispatch of material to site directly, site
certification for receipt of materials is required unless
otherwise provided for in the PO. Any deviation from the
above payment terms, if accepted (by BHEL), shall be loaded
@ SBI base rate + 6 % for the purpose of bid evaluation.
*********** ************
18 Evaluation and Loading Criteria:
Evaluation of the tender shall be on the basis of delivered
cost, i.e., „total cost to BHEL‟ w.r.t. the finalized technical
scope and commercial conditions (after considering, inter alia,
Customs Duty and CENVAT/VAT/Service Tax/Entry Tax as
applicable). Exchange rate (TT selling rate of State Bank of
India) applicable on the date of Part-I bid opening shall be
considered for evaluation of foreign bids. If the relevant day
happens to be a bank holiday in India, then the FOREX rate as
on the previous bank working day shall be taken for evaluation.
Foreign suppliers shall ensure that the benefits as
applicable under Comprehensive Economic Partnership
Agreement (CEPA) with Government of India are disclosed in
the bid & relevant documents such as Certificate of Country of
Origin, issued by the appropriate authority in the country of
Export, is provided by the vendor along with dispatch
documents. Bids shall be evaluated with such applicable
benefits. In the event of Seller failing to provide appropriate
documents for Purchaser to avail disclosed concessional duty
benefits in India, financial loss, so incurred, will be to the
Seller‟s account.
The quoted FOB price shall be loaded by the following to
arrive at the Delivered Cost:
*********** ************
Instruction to bidders and Terms & Conditions for Enquiry
No.E-1363068
Sealed tenders are invited in Two-Part Bid system for
purchase of the equipments/items as per enquiry. The supplies
against this tender enquiry shall be subject to our general
Terms and Conditions of enquiry and PO. In addition, the terms
and conditions given under this annexure shall specifically
apply to this enquiry. Should there be any difference between
the general Terms and conditions of enquiry & PO and the
conditions included in these annexures, the latter shall prevail.
XXX XXX XXX
3. Bid evaluation: - All the items of this tender enquiry
shall be purchased from a single source based on the overall
economy and bids shall be evaluated on total delivered cost to
BHEL taking into account all duties/taxes/Cess, freight etc as
could be applicable. Bidders may note that quoted rates shall
be loaded for any deviation from the terms & conditions given
in this enquiry.
*********** ************
12. Payments Terms: -
For Supply: - 100% payment of supply portion shall be
made directly within 90 days from the date of dispatch against
submission of performance bank guarantee of the 10% of
supply value valid till the end of the guarantee period or
commissioning of the equipment whichever is earlier. Suppliers
covered under MSMED may get early payment as per
MSMED act. Suppliers are required to submit valid
NSIC/EM-II/CA Certificate for payment under MSMED act.
In absence of these certificates, payment terms of 90 days
would be applicable.
Payments of Supervision: - 100% payment of supervision
charges for commissioning shall be released within 90 days on
pro-rata basis.
*********** ************
18. Integrity Pact (IP)
(a) IP is a tool to ensure that activities and transactions
between the Company and its Bidders/Contractors are handled
in a fair, transparent and corruption free manner. A panel of
Independent External Monitors (IEMs) have been appointed to
oversee implementation of IP in BHEL.
The IP as enclosed with the tender is to be submitted (duly
signed by authorized signatory who signs in the offer) along
with techno-commercial bid. Only those bidders who have
entered into such an IP with BHEL would be competent to
participate in the bidding. In other words, entering into this
Pact would be a preliminary qualification.
Details of IEM for this tender is furnished below:
Name: -Shri D.R.S. Chaudhary, IAS (Retd.)
Address: - E-1/164 Arera Colony, Bhopal, (M.P.), PIN-462016.
Email: -
(b) Please refer Section-8 of the IP for Role and
Responsibilities of IEMs. In case of any complaint arising out
of the tendering process, the matter may be referred to the IEM
mentioned in the tender.
No routine correspondences shall be addressed to the IEM
(phone/post/email) regarding the clarification, time extension
or any other administrative queries, etc. on the tender issued.
All such clarification/issues shall be addressed directly to the
tender issuing (procurement) department.
*********** ************"
5. Elgi and the second respondent Bauer Compressoren India Limited
(hereafter called "Bauer") both lodged their bids on 25.10.2016. These bids
were sent to BHEL's technical team for evaluation, which apparently
reported back with respect to findings and deviations in Part-I bids of both
BHEL and Bauer. Interestingly, the petitioner and Bauer had responded to
and participated in the NIT; they also participated and attended the technical
and un-priced bid opening on 25.10.2016.
6. Elgi contends that Bauer's quoted payment terms contained strong
deviations, whereas it had conformed to the payment terms without any
deviations. Elgi complains that in terms of Clause 12, BHEL should have
either rejected Bauer's bid or should have mandatorily loaded a SBI base
interest rate @ +6% for comparison purposes. It is stated that instead BHEL
opened Bauer's price bid on 23.01.2017. Therefore, when the price bid i.e.
Part-II was opened, Bauer's offer was marginally lower than Elgi by `27,
21,545/-. Elgi complains that when BHEL was asked when loading factors
was applied, for the purpose of price comparison in line with enquiry terms,
it was told that since Bauer withdrew its deviation, its payment terms were
acceptable. Elgi represented to BHEL on 25.01.17 to load Bauer's price bid
in terms of clause 12 of the tender conditions. BHEL replied stating that
Bauer had withdrawn its deviation at the tender evaluation stage.
7. The petitioner - Elgi again represented on 30.01.2017 protesting that
permitting withdrawal of the deviation was unfair and contrary to the terms
of the tender; upon receiving no satisfactory reply, Elgi approached the
independent external monitor (IEM) appointed to look into the complaints
arising from the tender interpretation. It is also stated that Elgi received
confirmation from the IEM that its complaint had been received; yet nothing
further was heard about it leading to a communication dated 28.02.2017 on
Elgi's part. Thereafter it is submitted that Elgi was asked to and did appear
before the IEM at Bengaluru on 07.03.2017. The petitioner states that it
became aware that the tender had been awarded in favor of Bauer on
09.02.2017. It thereafter proceeded to approach the IEM on 10.03.2017 about
BHEL's illegality.
8. On behalf of the petitioner, Sh. Rajive Mehra, learned senior counsel,
the grounds urged in support of the proceedings were reiterated. He also
argued that a comparison between the deviations indicated by Elgi on the one
hand and by Bauer on the other would show that there were substantial
deviations in Bauer's offer/bid. Elgi withdrew its deviations and agreed to
accept the terms in entirety by its letter, dated 27.01.2017. In the
circumstances, the deviations found at the time of Part-I bid opening, i.e.
25.10.2016, in Bauer's offer, stood. A plain reading of the tender conditions
meant that BHEL mandatorily had to load Bauer's offer with 6% of the
prevailing SBI rates because of the deviations. If it had in fact done so, in
accordance with the terms and conditions, Elgi's offer would have been
competitive and lower than that of Bauer resulting in the award of contract to
it.
9. Shri Mehra submitted that the fact that Bauer was permitted to
withdraw its deviation is contrary to the tender/NIT terms. It is submitted
that such withdrawal - done behind Elgi's back, conferred an unfair
advantage upon Bauer thereby creating an unequal playing field and thus
violating Article 14 of the Constitution. It is submitted that in these
circumstances, the award of the tender pursuant to the NIT in question to
Bauer should be declared illegal. Learned counsel submitted that the facts of
this case are sufficient for the court to exercise its circumscribed jurisdiction
and interfere in the grant of award of a public contract. Learned counsel
relied upon Master Marine Services (P) Ltd. v. Metcalfe &Hodgkinson (P)
Ltd. 2005 (6) SCC 138 and Tata Cellular v. Union of India 1994 (6) SCC
651.
10. BHEL argues that Clause 2 of the NIT clearly stipulated that once the
techno-commercial part of the bid, i.e. L-1, was to be opened on the due date,
"clarifications whenever required on this part shall be obtained from the
bidders for their evaluation." It is stated further that the technical team in the
present case submitted its evaluation report of both bids with findings of
deviation in Part-I of both parties on 08.11.2016. Based on these, separate
email communications/letters were addressed to both Elgi and Bauer on
09.11.2016. Likewise, BHEL sought another, i.e. second clarification with
respect to deviations on the commercial aspects from both parties, i.e. Elgi
and Bauer on 29.11.2016. BHEL argues that this communication clearly
pointed out that Elgi had deviated from its bid in guarantee clause, being A-
1.6 of Annexure-II and penalty clause - A-II.13 of the NIT. Likewise, Bauer
was intimated about its deviation from its guarantee clause A-1.6 and clause
12 (Payment Terms) of the NIT. In support of this submission, copies of the
emails addressed to both parties on 09.11.2016 and 29.11.2016 are relied
upon; they are produced as part of the record. It is stated that the same day
BHEL received replies to its emails seeking withdrawal of deviations by both
Elgi and Bauer. Again, copies of these email communications by the
petitioner/Bauer, which were pointed out earlier, have been produced in these
proceedings by BHEL.
11. It is pointed out by Sh. Atul Shankar Mathur, learned counsel for
BHEL that after this development, both parties were told about Part-II price
bid opening on 23.01.2017 at 02.00 PM through email on 19.01.2017. As
scheduled, the price bid was opened in the presence of both parties on
23.01.2017 when it was discovered that Bauer's prices were lower than that
of the petitioner. The purchase order/award of NIT hereafter followed to
Bauer on 09.02.2017.
12. It is contended that having regard to these conspectus of facts neither
is there any arbitrariness nor unfair treatment meted out to the petitioner/Elgi
which was aware that at all material times, clarifications were not only
sought from it, but also that the tender conditions permitted such
clarifications from any party in line with such NIT conditions; both parties
were asked to and given permission to withdraw deviations which they did.
Since the petitioner-as well as Bauer- were afforded equal opportunity and
both availed it, the question of one of them, i.e. Bauer's price bid being
loaded with +6% to its price quoted, could not apply.
13. Bauer supports BHEL's plea and also highlights Clause 2 of the NIT
as being the basis for clarification and opportunity to both the parties to
withdraw the deviation notified. In addition, it argues that it has invested or
placed orders worth `3.75 crores to its sub-suppliers towards execution of the
contract. It also contends that pursuant to the issuance of the purchase order
of 27.03.2017, the assembly of one set of compressors amongst the three
purchased had been commenced and assembly of another set for the second
project was also shortly commencing. Bauer contends that the petitioner is
hit by delay and laches because the techno-commercial bids part-I were
opened on 27.10.2016 and the parties withdrew the deviations in that
document, by end November 2016 and the price bid was opened on
23.01.2017. At none of these stages did the petitioner ever register its protest
or complaint of arbitrariness or discrimination; therefore, it cannot do so
now. Learned counsel for Bauer relies upon the Supreme Court ruling in
stressing on the minimum interference in award of tenders and cites B.S.N.
Joshi and Sons Ltd. v. Nair Coal Services Ltd. AIR 2007 SC 437.
Analysis and conclusions:
14. The undisputed facts therefore are that the NIT was published on
08.09.2016. The bidders were to submit a two part tender - Part-I containing
the techno-commercial terms and Part-II was the price bid. Part-I was opened
on 25.10.2016. On 29.11.2016, the deviations found in the petitioner/Elgi's
quotation, were withdrawn. Its email in this respect reads as follows:
"Dear Sir,
Thanks for your email.
We would like to bring your kind attention that we have already
confirm our compliance on your trailing email specified points
Sr. No.1 & 2 vide our compliance matrix sheet submitted to
BHEL email dated 28.11.2016. We herewith confirm and accept
guarantee clause as per clause no.A-1.6 of annexure-II and
penalty clause as per clause no.A-II.13 of annexure-II of
enquiry‟s techno-commercial terms and conditions. We have
quoted our best delivery period in our Techno-Commercial Bid
ESCL/AKJ/ENQ000118 dated 29.09.2016, Penalty clause
should be linked to our quoted delivery period.
Please find attached herewith the Memorandum of Association
which clearly showing ELGI Sauer Compressors Ltd. is a joint
holding company of M/s. Elgi Equipments Ltd. and M/s. J.P.
SAUER & SOHN.
We hope the same is inline with your requirement. Do let us
know in case you need any further
clarification/information/confirmation.
Thanks
With Regards
Anuj Kumar Jain/Sr. Engineer Sales
Elgi Sauer Compressors Limited / 23, ShivajiMarg, New Delhi-
110015, India."
15. BHEL's email to Bauer (like in the case of Elgi), which too received
email on 29.11.2016, notified the deviations; the relevant part of the email
reads as follows:
"Sir,
W.r.t. your qtn. No. BKI/2016/BHEL-B/Authorisation Letter
dt.06.10.16 against our enq.No.E1363068 for purchase of
Reciprocating Compressors for Pranhitha-6, 8, 10 & 11
Projects. Pls. reply to following queries:"
1. 1) You are requested to accept our guarantee clause
in toto as per clause no.A-I.6 of annexure-II of enquiry‟s
techno-commercial terms and conditions i.e. Confirm
acceptance to Guarantee clause as 24 months from the date of
receipt of material/equipment at site in good condition or 18
months from the date of commissioning, whichever is earlier.
The defective material/component shall be replaced free of cost
at our project site during above guarantee period at your own
cost.
Pls. note that any deviation in guarantee clause is not
acceptable.
2). Pls. note that payment terms mentioned by you is not
acceptable. You are requested to accept our NIT payment term
i.e.
For Supply: - 100% payment of supply portion shall be made
directly within 90 days from the date of dispatch against
submission of performance bank guarantee of the 10% of
supply value valid till the end of the guarantee period or
commissioning of the equipment whichever is earlier.
Payments of Supervision:- 100% payment of supervision
charges for commissioning shall be released within 90 days on
pro-rata basis.
3). Pls. confirm delivery materials within 20 weeks from the
date of approval of all documents.
Pls. reply to above queries latest by 30.11.16.
Thanks and Regards,"
16. Bauer sent a reply email, which clearly outlined its response point
wise to the deviations pointed out by BHEL. Bauer confirmed that it had
accepted its guarantee/warrantee clause by previous email dated 10.11.2016
and that as far as the second deviation, i.e. with respect to the payment terms
was concerned, it again agreed to accept BHEL's terms and conditions
notified in the NIT. The material portion of its email, dated 29.11.2016 is as
follows:
"Our Ref.:MHX/E1363068 Dt. 29.11.16
M/s. Bauer Kompressoren India Pvt. Ltd.
Sir,
W.r.t. your qtn.no. BKI/2016/BHEL-B/Authorisation Letter
dt.06.10.16 against our enq.No.E1363068 for purchase of
Reciprocating Compressors for Pranhitha-6, 8, 10 & 11
Projects. Pls. reply to following queries:
1) You are requested to accept our guarantee clause in toto
as per clause no.A-I.6 of annexure-II of enquiry‟s techno-
commercial terms and conditions i.e. confirm acceptance to
Guarantee clause as 24 months from the date of receipt of
material/equipment at site in good conditions or 18 months
from the date of commissioning, whichever is earlier. The
defective material/component shall be replaced free of cost at
our project site during above guarantee period at your own
cost.
Pls. note that any deviation in guarantee clause is not
acceptable.
BAUER KOMPRESSOREN INDIA: Vide our mail dated 10th
Nov 2016, we have already confirmed our acceptance to your
guarantee/warranty clause.
Reconfirmation: We once again confirm that the offered HP air
compressors are guaranteed/warranted for of 24 months from
the date of receipt of material/equipment at site in good
condition or 18 months from the date of commissioning
whichever is earlier. Defective material/component will be
replaced free of cost at the project site during the
warranty/guarantee period at our own cost.
2). Pls. note that payment terms mentioned by you is not
acceptable. You are requested to accept our NIT payment term
i.e.
For Supply:- 100% payment of supply portion shall be made
directly within 90 days from the date of dispatch against
submission of performance bank guarantee of the 10% of
supply value valid till the end of the guarantee period or
commissioning of the equipment whichever is earlier.
BAUER KOMPRESSOREN INDIA: Noted and agreed.
We would like to bring to your kind notice that we are
registered/covered under the MSMED Act and the necessary
certificate(s) are already submitted along with the offer.
Payments of Supervision: 100% payment of supervision
charges for commissioning shall be released within 90 days on
pro-rata basis.
BAUER KOMPRESSOREN INDIA: Noted and agreed.
But you are requested to inform the time frame in which the
compressors will be commissioned post-delivery. There should
be an agreement on this period between supply and
commissioning of compressor and to be linked to payment
release against supervision. Because if the commissioning is
delayed beyond this period then the payment against
supervision will get further delayed which will adversely affect
the supplier.
3. 3) Pl. confirm delivery materials within 20 weeks
from the date of approval of all documents.
.
BAUER KOMPRESSOREN INDIA: There are 4 project sites to
be served and each site has it‟s own lot size. Furthermore, you
have asked for all the ordered compressor (All together or in
lots) to be offered for a PDI before dispatch.
For timely deliveries, it is necessary that the inspection is
completed by BHEL within 15 days of our formal call and
dispatch clearance provided. If the completion of
inspection/dispatch clearance is delayed for reasons attributed
to buyer/user, it will only lead to delivery extensions and
thereby LD levy to the seller.
Considering the above reasons, we offer to deliver the
compressors at the respective sites in lots as under:
1st lot within 22 weeks from the date of receipt of approved
docuemtns at our works.
2nd lot within 30 days of first shipment.
3rd lot - within 30 days of second shipment.
4th lot - within 30 days of third shipment
However, we are ready to discuss the delivery schedule and lots
sizes at the time of order finalization.
Pls. reply to above queries latest by 30.11.2016.
Thanks and Regards."
17. The upshot of the above discussion is that in this case the tenders of
both bidders contained deviations that were unacceptable to the BHEL. Both
the bidders were notified after the tender evaluation through different emails
on 09.11.2016. Both bidders withdrew the deviations notified. They again
confirmed the withdrawal of deviations in response to another email written
by BHEL to both Bauer and Elgi. This meant that as far as the techno-
commercial aspects were concerned, there were no deviations in the bids of
both the competitors. In these circumstances, Elgi's complaint of
arbitrariness and discrimination in BHEL's omission to load or add the SBI
base rate of 6% for the purpose of bid evaluation is insubstantial and without
merit.
18. A textual and plain interpretation of the NIT would show that at the
time of the opening of the techno-commercial part (Part-I) or thereafter,
clarifications could be sought. Indeed clarifications were sought from both
the parties -even to the extent of communications by BHEL being addressed
on the same day, i.e. 09.11.2016. Bauer and Elgi both responded bringing
their bids in conformity with the NIT, thus withdrawing the deviations. They
were thus placed at par and their bids became compliant with the NIT. The
only step that remained was the opening of the price bid, which occurred on
23.01.2017. On that date, it was clear to Elgi that Bauer's quoted price was
lower and that it was to be treated as L-1.
19. The record nowhere discloses that the petitioner/Elgi ever protested on
23.01.2017 when the price bid was opened in regard to the so-called
deviations. During the course of hearing, Elgi was not able to point out any
condition that obliged BHEL to disclose its communications between it and
one party, to the other competing bidder. In other words, the NIT did not
mandate transparency to the extent of disclosure of inter se correspondence
between BHEL and both competitors to each of them. This meant that
whatever deviations were discovered were notified to the parties individually
and their clarifications were sought. It is in this regard that BHEL had to
provide and did provide equal opportunities to both parties who utilized it.
Having availed of all of these opportunities, to bring the bid in line with and
comply with the terms of the NIT - as in the case of Bauer, Elgi cannot be
heard to complain that deviations of the latter were unfairly permitted to be
withdrawn or that the pre-existing deviations ought to be treated as on record
and Bauer's bid ought to be mandatorily loaded with +6 factor for price
evaluation purposes. In the opinion of this court, consequently, there was no
arbitrariness or violation of Article 14, having regard to these circumstances.
20. The authorities cited by Elgi Master Marine Services (supra) and Tata
Cellular, in the opinion of this Court do not support it. Having regard to the
findings rendered above, undoubtedly, the Court can interfere with the award
of a public contract by a State agency if it finds that the process is infected
with illegality, the procedure is irregular or the award smacks of manifest
unreasonableness or even arbitrariness. In this case, there was no
arbitrariness; rather the procedure adopted in seeking clarifications and
providing opportunities to both bidders to withdraw their deviations created a
level playing field and was in reality furthering Article 14 of the
Constitution.
21. In view of the above findings, the writ petition fails and is therefore
dismissed with no order as to costs.
S. RAVINDRA BHAT
(JUDGE)
S.P. GARG
(JUDGE)
AUGUST 2, 2017
