Delhi High Court
Afilias India Pvt. Ltd. vs Union Of India & Ors. on 25 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 01.02.2019
% Pronounced on : 25.02.2019
+ W.P.(C)No.8886/2018
AFILIAS INDIA PVT. LTD. ..... Petitioner
Through: Ms. Chinmayee Chandra, Adv.
versus
UNION OF INDIA & ORS. . .... Respondents
Through: Mr. Ravi Kishore, Mr. Niraj Singh, Mr.
Deepak Jaiswal and Ms. Atipra Aick,
Advs. for R-2.
Mr. Rakesh Munjal, Sr. Adv. with Ms.
Yashita Munjal and Mr. Yogesh Mittal,
Advs. for R-3.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
S. RAVINDRA BHAT, J.
1. The petitioner is aggrieved by the decision of the second respondent,
the National Internet Exchange of India (hereafter "NIXI"), a not-for-profit
organization incorporated under Section 25 of the Companies Act rejecting
its tender/bid for Selection of Technical Service Provider for .IN Registry
(hereafter "the service").
2. The Domain Name System ("DNS") acts as a phone book for the
Internet by translating human-friendly names into internet addresses, i.e. it
maps a web address keyed in by a user to the appropriate webpage by
routing it through the correct path. It is a naming system for computers,
services, or other resources connected to the Internet or a private network.
A domain name consists of one or more parts, technically called 'labels'
separated by dots, (such as 'idea.com‟). The rightmost label conveys the
top-level domain ("TLD"), i.e. the domain name 'www.example.com'
belongs to the top-level domain „com‟.
3. The Internet Corporation for Assigned Names and Numbers
("ICANN") is the global regulatory body for the Internet's Domain Name
System and Top-Level Domains;it develops policies for internationalization
of the DNS system, introduction of new generic TLDs, etc. The standards
applicable to the DNS are contained in a set of documents known as
'Request for Comments' or 'RFC Documents' published by the Internet
Engineering Task Force (Internet standards). ICANN delegates the right to
use a domain name to domain name registers, which are accredited by it.
Every top-level domain (TLD) is maintained and serviced technically by an
administrative organization, operating a registry (in India's case, the .IN
Registry operated by NIXI). A registry is responsible for operating the
database of names within its allocated zone. A registrant is one who seeks a
domain registration. ICANN publishes the complete list of TLDs, TLD
registries, and domain name registrars.
4. Text in computers, telecommunications equipment etc. are
represented by the character encoding standard for electronic
communication, i.e. the American Standard Code for Information
Interchange ("ASCII"). ASCII was originally based on the English
alphabet; it now encodes 128 specified characters into seven-bit integers.
Ninety-five encoded characters are printable: these include the digits 0 to 9,
lowercase letters a to z, uppercase letters A to Z, and punctuation symbols.
In addition, the original ASCII specification included 33 non-printing
control codes which originated with Teletype machines; most of these are
now obsolete. The limited set of ASCII characters permitted in the DNS
prevented the representation of names and words of many languages in their
native alphabets or scripts. To facilitate this, ICANN approved the
Internationalizing Domain Names in Applications ("IDNA") system, by
which user applications, web browsers, map Unicode strings into the valid
DNS character set. In 2009 ICANN approved the installation of
internationalized domain name country code top-level domains ("ccTLDs")
and many registries of the existing top-level domain names have adopted
the IDNA system.
5. The ".IN" is the top-level domain ("TLD") of India at the highest
level in the hierarchical Domain Name System of the Internet. Being a
country code TLD ("ccTLD"), .IN domain is an India specific unique
symbol. The .IN domain initially started with 6,500 registrations before it
was re-launched in the January 2005 by Department of Information
Technology ('DIT') now Ministry of Electronics & Information Technology
(MITY the first Respondent). NIXI is authorized to operate and manage the
.IN Registry. The primary objective of the re-launch was to establish a
strong technical foundation and project .IN domain as a reliable and stable
ccTLD. The .IN domain was well received in the market and in the first 90
days, registrations crossed the 100,000 mark. From its initially modest
beginning, the .IN registrations have now crossed the 2.2+million
registration mark firmly establishing it as a leading TLD globally with its
registrants in over 150 countries.
6. The petitioner states that despite significant growth of the Internet
user base still only about 22 percent of the Indian market is penetrated.
Internet penetration in the country is one of the key factors that contribute
to the growth of the domain names for a ccTLD. At present, unlimited
registrations are available in the following zones, where registration is
available freely to all parties worldwide, and there are no nexus or other
qualifications:(a) .in (b) co.in; (c).net.in; (d) org.in: (e) firm.in; (f) gen.in
(general) and (g) ind.in (individuals). It is submitted that zones reserved for
use by qualified organizations in India are (a) ac.in. (Academic); (b) res.in
(Indian research institutes); (c) edu.in (Indian colleges and universities); (d)
gov.in (Indian government); (e) mil.in (Indian military).
7. In 2004, NIXI planned the necessity of a Technical Service Provider
with international experience and the expertise of operating and managing
the .IN domain Registry. Therefore, a global tender was issued in
November 2004 and through a competitive and transparent bidding process,
the Petitioner was selected as TSP to operate and maintain .IN domain
Registry for the period of 2007 to 2012 and 2013 to 2017 respectively,
which was to expire on 31.12.2017. It is stated that the role of the TSP is
very important as it provides critical infrastructure, technology and services
to NIXI for smooth and efficient management of .IN domain Registry.
8. It is stated that Indian scripts are different from Latin based scripts as
they are written in different alphabets / characters of the respective regional
languages and use 'matras', half-characters, special language specific
characters such as 'halant' and there are numerous variants within individual
languages and scripts. It is claimed that over the years, the Petitioner has
undertaken huge efforts and developed Indian language-based applications.
For this, the Petitioner had to write significant amount of specialized code
to render these languages correctly such that users are directed to the correct
address. The Petitioner successfully worked with NIXI to enable
registration of the "भारत" (.bharat) ccTLD with ICANN after complying
with stringent RFC standards. Consequently, the registry has commenced
accepting Internationalized Domain Names ("IDNs") in regional languages
and has been developing applications to permit registrations in all Indian
languages in internationalized script. It is also contended that the भारत
(.bharat) domain name in Devanagari script was successfully launched on
27.08.2014. In the next phase, availability of IDN in Gujarati, Bengali,
Manipuri in Bengali script, Punjabi, Tamil, Telugu and Urdu language
started from 03.08.2015. At present, the petitioner claims that the
commonly used IDN domain name zones are (a) भारत (.bharat)
(b)कंपनीभारत (.company.bharat) (c) वाद्याभारत (vidya.bharat) (Exclusive
registrar: ERNET) (d)सरकारभारत (.sarkar.bharat) (Exclusive Registrar:
NIC). Furthermore, the petitioner claims to be presently working towards
development of domain names for nine Indian scripts namely Devanagari,
Bengali, Gujarati, Gurmukhi, Kannada, Malayalam,.Oriya, Tamil and
Telugu. It is stated that ICANN approved delegation of the 7 TLDs
representing India on 25.01.2011, pursuant to which lANA entered "भारत"
(.bharat) in the 7 languages in the Petitioner's name servers. In the
meanwhile, the Petitioner had also begun discussions with NIXI regarding
the launch process, scope, of work and requirements for launching an IDN
ccTLD.
9. On 04.06.2012, NIXI issued another RFP for selection of a
Technical Service Provider for the period 2013 to 2017. The Petitioner
submitted its bid on 06.07.2012, which was selected and the contract was
awarded to the Petitioner on 08.12.2012. In 2014, the NIXI introduced
Internationalized Domain Names ("IDNs") to enable users to access web
sites in their own language. The "भारत" (.bharat) domain name in
Devanagari script was launched on 27.08.2014. Availability of IDNs in
Gujarati, Bengali, Manipuri in Bengali script, Punjabi, Tamil, Telugu and
Urdu language started from 03.08.2015.
The present tender and disputes relating to it
10. The dispute which arises for consideration arises out of a tender
(RFP) issued by NIXI on 30.01.2018,for Selection of Technical Service
Provider for .IN Registry. The RFP specified: the "Scope of Work" of the
Technical Service Provider thus per Clause 7.5.2:
''for "Providing technical Services to Operate and Maintain .IN
Registry " through which the Purchaser intends to perform all
.IN Registry Operations. The TSP is required to provide such
services, support and infrastructure as the Purchaser may deem
proper and necessary, during the term of the Contract, and
includes all such processes and activities which are consistent
with the proposals set forth in the Bid, the RFP and this Contract
and are deemed necessary by the Purchaser, in order to meet its
business requirements (hereinafter 'scope of work').''
Performance of all .IN Registry operations, which includes
management of domain names in regional languages, requires
experience with Indian language addresses."
11. It is alleged that the Scope of Work requires the TSP to have
experience and expertise in Indian language domain names and Indian
scripts.
12. Clause 9 of the RFP which sets out, in detail, the Scope of Work and
clause 9.9 to the relevant extent, are extracted below:
"Scope of Work
9.1 Shared Registry System
9.1.1 The Extensible Provisioning Protocol (EPP) - based .IN
Registry platform provides a stable, DNSSEC and IPv6- enabled
Shared Registry System (SRS) that is scalable, state of-the-art,
and secure. The SRS is capable of registering domain names
managed by multiple registrars.
9.1.2 The TSP shall ensure that technical and operational
specifications for the SRS consists of the following parts:
[..........]
f.Comply with the multi-Unsual requirement.ofNIXI]
[...... ]
9.9 Implementation of IDNs
9.9.1. Implementation and Support of IDNs in multiple Indian
languages which are approved and to be approved
9.9.2. Support of IDNs with variant characters and normalisation
routines specific to Indian languages
9.9.3. Compliance with the Internationalizing Domain Names in
Applications ('IDNA) standards, including involvement in the
IDN community, development, and standards groups
9.9.4. Formulate and publish IDN tables and policies in
coordination with language authorities
9.9.5: Provide a variant generator and a puny code converterfor
use of registrants and registrars
9.9.6: Support of IDN TLDs in all twenty two scheduled Indian
languages and Indian scripts
9.9.7. Support for EAIs. at IDN.IDN in all twenty two Indian
scheduled languages and enable complete localisation of all
email address into local Indian languages and shall support the
<India.IN> email plan."
Emphasis supplied]"
13. The petitioner alleges that the clear condition in the RFP was that
bidders must possess the requisite experience and capability to provide the
services and meet the requirements described in the RPP. This was a pre-
qualification criterion (contained in Clause 8.1.3), which reads as follows:
''the bidder must possess the requisite experience, strength and
capabilities in providing the services necessary to meet the
requirements, as described in the RFP. The bids must be
complete in all respects and should cover the entire Scope of
Work as stipulated in the RFP."
14. It is also alleged and contended that the RFP clearly stated that
technical bids shall first be reviewed for determining compliance with RFP
terms and conditions, minimum /mandatory technical requirements and the
scope of work. Clause 8.2 of the RFP is relevant which inter alia stipulates
the following:
'8.2 Evaluation of Technical Bids
8.2.4 The technical bid shall first be reviewed for determining
the Compliance of the Technical bids with the RFP terms and
conditions. Minimum/ mandatory Technical requirements and the
scope of work as defined in this RFP.
8.2.5 Any bid found to be non-compliant to the mandatory
Technical Requirements, RFP terms and conditions and the
scope of work shall be rejected and shall not be considered for
further evaluation. Bids that are technically compliant would
only be taken up for commercial evaluation."
15. Learned senior counsel, Mr. Gopal Jain argued that in view of these
clear conditions in the RFP, bidders should have inter alia had experience
of supporting IDN TLDs in 22 Indian languages and scripts. This is a
material and fundamental term of the RFP, which cannot be ignored or
diluted. It is a vital and critical condition as such experience is necessary for
any TSP that is to manage and support the .IN Registry which has IDN
TLDs in Indian languages and is developing ccTLDs in all 22 Indian
languages.
16. It is submitted that both the petitioner and the third respondent - the
successful bidder participated in the bidding process. The NIXI‟s evaluation
committee adjudged both bidders as technically qualified in terms of the
RFP, and the commercial bids were opened on 11.07.2018. As the third
respondent quoted a price of USD $ 0.71 per domain while the petitioner
quoted a price of $ USD 1.10 per domain, NIXI declared the third
respondent as the LI.
17. It is submitted that on 13.07.2018, the Petitioner learnt of the third
respondent's incredibly low price quoted and wrote to NIXI drawing its
attention to Clause 8.3.7 of the RFP which states that ''Bidders quoting
incredibly low or unrealistic high cost of items leading to unrealistic
commercial bid with a view to subverting the tender process shall be
rejected straight away and EMD of such vendor shall be forfeited. Any bid
found to be unsatisfactory in terms of any of the evaluated parameters as
mentioned may be rejected and shall not be considered for further
evaluation." It was argued that the price of LI is unrealistic and
unsustainable and that such low financials will pose a danger to the stability
of a critical national infrastructure like the .IN registry. Counsel also
pointed out that Respondent No.3 had just lost the .AU registry (Australia)
in a competitive bidding where it was charging USD 6.00 per domain, that
it is similarly charging USD $ 5.00 per domain for the .biz TLD, and that
these rates are nowhere close to the USD 0.71 per domain quoted by
Respondent No.3 for the .IN registry.
18. Reliance is placed on two letters to the NIXI, dated 16th and 18th
July, 2018 objecting to the award of the contract to the second respondent;
further the petitioner also states that on 19.07.2018, it again wrote to the
RFP Committee of NIXI pointing out critical technical gaps in the bid of
the third respondent and consequent risks to the stability of .IN registry.
19. Mr. Jain argued that the third respondent lacks experience in
supporting Hindi or any other Indian language in the marketplace with
respect to second-level Hindi, Tamil or other Indian language IDN
registrations; and top-level Hindi, Tamil or other Indian language
operations. It is also submitted, further that attempts to register Hindi
language names in major TLDs supported by the third respondent results in
a response which reads 'invalid' or 'the domain name contains invalid
characters'. Counsel argued that on the other hand, the Petitioner has
custom built the IDN program which is now operating successfully for .IN,
which is the result of a complex and sophisticated initiative never
undertaken by any other registry operator in the world. Further, for an
operator with no existing capabilities in Hindi / Indian languages, to.
replicate such a program introduces extreme risk into the stability of .IN
and jeopardizes the security and accessibility of every name in use.
20. It is submitted that the utter lack of experience and expertise to
develop and maintain .IN programs threatens the third respondent‟s
credibility in performance of core and basic tasks in NIXI‟s stated objective
of intending to perform all. .IN Registry Operations. Therefore, the third
respondent was ineligible in terms of the RFP and NIXI could not have
accepted its bid. Counsel submitted that the acceptance of the third
respondent‟s bid and rejection of the petitioner‟s bid is arbitrary and
contrary to Article 14 of the Constitution of India.
21. It is argued on behalf of NIXI that it is authorized by the
Government of India as the sole authority for the purpose of running the
ccTLD (country code top level domain) - .IN domain and .bharat the IDNs
(Internationalized domain names) in various Indian official languages. NIXI
is also the neutral meeting point of the ISPs in India. Its main commitment
is to facilitate exchange of domestic Internet traffic between the peering ISP
members. This enables more efficient use of international bandwidth,
saving foreign exchange. It also improves the quality of services for the
customers of member ISPs, by avoiding multiple international hops and
thus reducing latency.
22. It is pointed out that the "RFP" categorically mentioned that before
opening and evaluation of the technical proposals, bidders are expected to
meet all the conditions of the RFP and the pre-qualification criteria. Bidders
failing to meet these criteria or not submitting requisite supporting
documents/ documentary evidence for fulfilling the pre-qualification
criteria are liable to be rejected. The RFP also mentioned that the bidder
must possess the requisite experience, strength and capabilities in providing
the services specified. In response, two bids were received by NIXI.
23. NIXI urges that the bids submitted by bidders were evaluated by an
evaluation committee with the help of an independent consultancy
organization, to ascertain whether they complied with the criteria prescribed
by the RFP and also whether the bidders were technically qualified in terms
of the RFP. NIXI stated that on evaluation the bids submitted by the
Petitioner and the third respondent were found to be technically qualified
and consequently the commercial bids were opened on 11.07.2018 only for
these two bidders as they were the only two technically qualified bidders.
This was categorically mentioned in the RFP that the Commercial bids
submitted by only those bidders shall be eligible for further evaluation, who
has qualified both the requalification and the Technical evaluation.
24. It is further argued that in terms of the RFP and on
scrutiny/evaluation of the Commercial Bids it was stated that the bidder
who had quoted the lowest amount per Financial Transaction Annual
Service Price shall be awarded the Contract. In view of this, the third
respondent was awarded the contract; it had quoted the lower price per
domain transaction as against the price quoted by the petitioner.
25. It is further argued that with regard to the appointment of the third
respondent as TSP, the Petitioner wrote various emails to the NIXI, to the
Secretary of the Union Government, who is also the Chairman NIXI
alleging the appointment of third respondent was unrealistic and
unsustainable and that low financials will pose a danger to the stability of a
critical national infrastructure like the .IN registry. It further wrote that the
third respondent has violated Clause 8.3.7 of the RFP and that their quote is
irrational and predatory. The NIXI, denied those allegations. It is contended
that a definitive Technical Service Provider (TSP) Agreement was entered
between the third respondent and NIXI on 3.10.2018 in terms of the RFP.
26. The petitioner‟s contentions that the third respondent is ineligible in
supporting and managing domain names in Indian languages and scripts and
it is also further denied that their bid is liable are denied as baseless; it is
stated that on the contrary the third respondent has all the relevant
qualifications and expertise to support and manage the .IN registry as per
the terms of the RFP.
27. NIXI stated that the third respondent had submitted in the bid
document that it possessed the relevant qualification and experience to
support the International Domain Names (IDNs) in Indian languages and
scripts. In its technical bid response the third respondent stated as under:-
"IDN Support
The Neustar Registry supports over 20 IDN language tables
which includes Hindi. Based on the given language table,
Neustar not only complies with the IDN2008 rules, complies
language specific context rules and variants are supported as
well to provide a meaningful implementation of a language for
the target registrants and public users.
Context rules include, but not limited to:
• Positional requirements in context to the use or presence
of other characters;
• Combination and/or patterns of characters allowed in
label; and
• Classification of a subset(s) of character determining
they use with one another in a single label."
28. NIXI states that the third respondent, therefore has the capabilities
to manage and support IDNs in Indian languages.It further states that:
"The allegation of the Petitioner is baseless as it has not
provided any documentary evidence to support its contention. In
the contrary the Respondent No.3 in its bid had specifically
submitted that it supports over 20 IDNs languages which
includes Hindi. The RespondentNo.3 has confirmed that it has
extensive experience with in-country registry development which
comply with NIXIs requirements. The Respondent No.3 have
develop registry software in UAE, Qatar and Oman. The
Respondent No.3 has extensive experience providing back end
registry services and has done so far over 17 years."
29. NIXI denied the allegation that the third respondent‟s bid was with
an intention to subvert the tender process and submitted that it is a well
settled principle that in a commercial tender, quoting a price is left to the
bidder and the lowest price so quoted needs to be accepted if the bidder
meets all other criteria of the RFP. It also denies that the third Respondent
tried to influence the tender process by extraneous considerations like a
proposed meeting to be held at its corporate headquarter. NIXI denies that
any such proposed meeting took place and that "In the past also such
meeting had taken place in overseas offices of the Petitioner, who was the
earlier Service Provider also wherein thecost of the travel was borne by the
Respondent No. 2." (i.e NIXI).
30. The evaluation process, states NIXI was conducted by an
internationally reputed consultancy organization in a transparent manner
after which the contract was awarded to the third respondent. NIXI further
stated as follows:
"50. The averments in the Para 50 (a) to (d) are false and
hence denied. It is reiterated that the Respondent No.3 in its bid
had submitted that it had full knowledge, expertise and
experience to act as the TSP in terms of the RFP. Further, the bid
was evaluated by an internationally reputed consultancy
organization. It is worthwhile to mention that the Respondent
No.3 expertise in supporting in Hindi. On the contrary the
Respondent No.3 in its bid had specifically submitted that it
supports over 20 IDNs languages which includes Hindi. The
Respondent No.3 has confirmed that it has extensive experience
with in-country registry development which comply with NlXI's
requirements. The Respondent No.3 have developed registry
software in UAE, Quarter and Oman. The Respondent No.3 has
extensive experience providing back end registry services and
has done so far over 17 years.
51. The contents of Para 51 of the Petition are false and
denied. It is submitted that the Respondent No.3 was declared a
successful bidder on the basis of global tender in a transparent
manner and after evaluation of the bid by an internationally
reputed consultancy organization. The evaluation was strictly as
per the terms and conditions of the RFP. The allegations made
by the Petitioner are frivolous and baseless and the same have
been made with the sole intention of scuttling the process."
31. The third respondent, denies the allegations that it lacks the
experience and states that the petitioner‟s allegations are unfounded; it
claims to have earned the reputation of being among the most reliable and
trusted domain name registry service providers in the world and further that
the technology provided by it supports the global community with the
infrastructure throughout America, Europe, Africa, Asia, and Middle East
and further that it manages over 13 million domain names across
approximately 250 TLDs. These span country codes, generic, city and
brand TLDs. Its operational models are flexible to support customer needs
including fully licensed solutions like those deployed for .ae, .om' and .qa,
revenue share models, or software-as-a service engagements that are in
place with many other TLDs.
32. The third respondent claims that it was one of the first registry
service organizations to successfully implement an IDN (IDN Registry
Service System) using the IDNA 2008 Protocol. Its implementation
provided fully configurable support for. Further, it played an integral role in
the introduction of IDNs through participation in the-Internet Engineering
Task Force. It is stated that the said respondent has deep experience in
complex languages including but not restricted to Chinese, Arabic and
Hindi. The allegations about its lack of experience are therefore, denied
Allegation no.2 That the petitioner has alleged that the Respondent No. It
also denies that it has no knowledge or expertise in Hindi language or that
the global authority repository does not recognize the third respondent as an
entity having experience in Hindi language names.
33. The third respondent submits that :
"in this regard it is submitted that the allegations as leveled by the
petitioner are unfounded as Neustar Data InfoTech (India) Private
Limited (Respondent No. 3) is a wholly owned subsidiary of Neustar,
Inc. The foundation of the Respondent No.3 is of technical excellence
in delivery of domain name registration services. It also goes far
beyond that which also supports the objectives of Respondent No.2.
The Respondent No. 3 has earned the reputation of being among the
most reliable and trusted domain name registry services providers in
the world. The technology supports a global community with
infrastructure throughout America, Europe, Africa, Asia, and Middle
East. As described above. Respondent No. 3 has successfully passed
the PDT(Pre-delegation testing) process conducted by IIS
(Internetstiftelsen Sverige) with the Hindi Language Table. That the
table based on the Hindi language can be found at
https://registry.in/lnternationalized_Domain_Names_IDNs. That as
far as IANA is concerned, it is stated that this is related to the
relevant registry operator's timeline as to when it wishes to publish
or update, so IANA's website cannot be taken as the sole criterion
nor was that the condition leveled in the RFP. In addition, IANA has
its own timeline as to its own wishes as to when it decides to upload
or update the Hindi Language Table on its website. The Respondent
No. 3 is not responsible for the same. The answering respondent is
not required to upload its experience on IANA's website. As
explained above, the Respondent No. 3 has the experience and
technical capability to manage, support IDNs in Indian languages
and has also shown proofs regarding the same. Therefore, the
present allegation is totally unfounded, baseless and is without any
merit attached to it. Thus, the present petition is devoid of merits and
is liable to be dismissed.
34. The petitioner‟s challenge to the award of contract therefore, to the
third respondent is on the basis that the latter has no experience in
developing and maintaining a domain name service in Indian languages.
The petitioner relies on clause 8.2.4 and 8.2.5 to say that the bid should
comply with the requisite standards needed for the scope of work. In this
regard, to spell out what the scope of work is, the petitioner relies on the
following RFP stipulations:
"9.1.2 The TSP shall ensure that technical and operational
specifications for the SRS consists of the following parts:
[..........]
f.Comply with the multi-Unsual requirement.ofNIXI]
[...... ]
9.9 Implementation of IDNs
9.9.1. Implementation and Support of IDNs in multiple Indian
languages which are approved and to be approved
9.9.2. Support of IDNs with variant characters and normalisation
routines specific to Indian languages."
35. It is apparent that what the RFP required as essential qualifications
were that the bidder should have the technical capability of supporting
"IDNs in multiple Indian languages which are approved and to be
approved"; that it should "Complywith the multi-
Unsualrequirement.ofNIXI" and also that it should be able to "Support of
IDNs with variant characters and normalisation routines specific to Indian
languages.". Conspicuously these conditions do not spell out previous
experience in supporting IDNs in multiple Indian languages or that the
previous experience of the bidder should necessarily be in all or some
Indian languages. In turn, this implies that bidders should have sufficient
expertise in supporting multiple IDNs in several languages. The petitioner‟s
emphasis is that the expertise or experience should necessarily be in Indian
languages. However, there is no such clear tender condition mandating that
all bidders should possess such prior experience. What is needed is ability
to support and maintain IDNs with variant characteristics and normalization
routines specific to Indian languages and (b) ability to comply with "multi-
Unsualrequirement.of NIXI". If the petitioner would have its way, perhaps
the NIXI would be left with only one contender: i.e. the petitioner because
there might be very few competitors.
36. The correct approach that courts with respect to challenges to the
award of contracts by a public agency or the executive government was
delineated by the Supreme Court in Municipal Corporation, Ujjain and
Ors. vs. BVG India Limited and Ors., (2018) 5 SCC 462 after considering
and citing a large number of its previous rulings. The court observed that:
"25. In Central Coalfields Ltd. v. SLL-SML (Joint Venture
Consortium) (2016) 8 SCC 622, it was observed as follows:
"38. In G.J. Fernandez v. State of Karnataka (1990) 2
SCC 488] both the principles laid down in Ramana
Dayaram Shetty (1979) 3 SCC 489 were reaffirmed. It
was reaffirmed that the party issuing the tender (the
employer) "has the right to punctiliously and rigidly"
enforce the terms of the tender. If a party approaches a
court for an order restraining the employer from strict
enforcement of the terms of the tender, the court would
decline to do so. It was also reaffirmed that the employer
could deviate from the terms and conditions of the tender
if the "changes affected all intending applicants alike and
were not objectionable". Therefore, deviation from the
terms and conditions is permissible so long as the level
playing field is maintained and it does not result in any
arbitrariness or discrimination in Ramana Dayaram
Shetty sense.
47. The result of this discussion is that the issue of the
acceptance or rejection of a bid or a bidder should be
looked at not only from the point of view of the
unsuccessful party but also from the point of view of the
employer. As held in Ramana Dayaram Shetty the terms of
NIT cannot be ignored as being redundant or superfluous.
They must be given a meaning and the necessary
significance. As pointed out in Tata Cellular there must be
judicial restraint in interfering with administrative action.
Ordinarily, the soundness of the decision taken by the
employer ought not to be questioned but the decision-
making process can certainly be subject to judicial review.
The soundness of the decision may be questioned if it is
irrational or mala fide or intended to favour someone or a
decision "that no responsible authority acting reasonably
and in accordance with relevant law could have reached"
as held in Jagdish Mandal followed in Michigan Rubber."
26. This Court also made an observation on judicial interference
in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation
Ltd. and Ors. (2016) 16 SCC 818, as hereunder:
"15. 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."
Similar observations were made in the cases of Jagdish
Mandal v. State of Orissa and Ors. (2007) 14 SCC 517, and
Meerut Development Authority v. Assn. of Management
Studies (2009) 6 SCC 171.
27. Thus, only when a decision-making process is so arbitrary
or irrational that no responsible authority proceeding
reasonably or lawfully could have arrived at such decisions,
power of judicial review can be exercised. However, if it is
bona fide and in public interest, the Court will not interfere in
the exercise of power of judicial review even if there is a
procedural lacuna. The principles of equity and natural
justice do not operate in the field of commercial transactions.
Wherever a decision has been taken appropriately in public
interest, the Court ordinarily should exercise judicial
restraint. When a decision is taken by the concerned authority
upon due consideration of the tender document submitted by
all tenderers on their own merits and it is ultimately found
that the successful bidder had in fact substantially complied
with the purpose and object for which the essential conditions
were laid down, the same may not ordinarily be interfered
with."
37. The petitioner‟s claim to arbitrariness and unfairness on the part of
NIXI entirely hinges on its interpretation of the tender conditions. It
emphasizes and underlines that sans prior experience in maintaining
multiple Indian languages, no bidder can be awarded a contract by NIXI. Ex
facie, this contention appears to be based on an assumption- perhaps
misplaced, that it is essential for every bidder to mandatorily possess the
experience outlined in the tender conditions in respect of all Indian
languages. This court holds that the interpretation is incorrect; as long as
bidders can succeed in showing previous expertise in multiple languages,
including and peculiar language variant characteristics its offer can be
evaluated. That indeed happened with the third respondent, which has
experience of maintain DNAs and in several languages (in its case,
languages such as Arabic and Chinese, which may have specific traits) with
17 years‟ experience; it has managed the web sites of volumes up to 13
million, worldwide. In these circumstances, its bid could not have been
brushed aside as technically not compliant, for lack of experience.
38. If the petitioner‟s argument were to be considered, going back, it
might not have been awarded the contract, for the first time in 2012. At that
time, the petitioner too was an outsider, without experience; yet it was
chosen and awarded the contract. Therefore, if a credible competitor
emerges with relevant expertise and experience in maintaining several
languages, its bid can be considered valid and competent.
39. In view of the above reasons, it is held that the interpretation given to
the tender conditions, which pertains purely to technical matters, by NIXI
cannot be faulted. Consequently, the writ petition fails; it is therefore
dismissed without order on costs.
S. RAVINDRA BHAT
(JUDGE)
PRATEEK JALAN
(JUDGE)
FEBRUARY 25, 2019
