Delhi High Court
M/S Visual Technologies India Pvt ... vs Executive Engineer (E) Plewd, ... on 5 August, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05th AUGUST, 2022
IN THE MATTER OF:
+ W.P.(C) 10582/2022 & CM APPLs. 31881/2022 & 30630/2022
M/S VISUAL TECHNOLOGIES INDIA PVT LTD .... Petitioner
Through: Mr. Sanjiv Sen, Sr. Advocate with
Mr. Kumar Shashank, Mr. Nimesh
Kumar, Mr. Umang Mahindra and
Mr. Piyush Tonk, Advocates.
versus
EXECUTIVE ENGINEER (E) PLEWD, CPWD AND ANR.
..... Respondents
Through: Mr. Chetan Sharma, ASG with Mr.
Apoorv Kurup, CGSC with Mr. Amit
Gupta, Mr. Saurabh Tripathi, Mr.
Rishav Dubey, Mr. Aakarsh
Srivastav, Mr. Ojaswa Pathak and
Ms. Nithi Mittal, Advocates for UOI.
Mr. Abhhimanyu Tiwari, Advocate
for R-3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The instant writ petition has been filed under Article 226 of the
Constitution of India, 1950, seeking the issuance of a writ of mandamus for
quashing of the letter dated 07.07.2022 issued by the Respondents whereby
the Petitioner was found to be ineligible for opening of the financial bid on
account of not fulfilling the eligibility criteria of work experience. The
Petitioner has further sought for directions for the Petitioner to be allowed
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to participate in the financial bid in E-TENDER NO.
06/CE(E)/PEWZ/PLEWD/2022-23 dated 02.06.2022.
2. The facts, in brief, leading to the instant petition are as under:
a) It is stated that NIT/RFP in respect of E-Tender No.
06/CE(E)/PEWZ/PLEWD/2022-23 dated 02.06.2022 was
floated by Respondent No.1 for " Supply, Installation, Testing
and Commissioning (SITC) of telecast/broadcast facilities of
Sansad TV at Parliament House Complex, New Delhi". The
type of work is stated to be "Audio-Visual Equipment", and the
Estimated Cost for the same was stated to be Rs. 80,85,64,981/-,
with Rs. 90,85,650/- as the Earnest Money.
b) One of the requirements for eligibility for application is that the
contracts/firms interested in bidding need to be specialized
agencies who have previously executed similar nature of works.
Clause 1(a) of the bid document which has been extracted in the
later part of the judgment provides that the bidder should have
completed the works as mentioned in the document during the
last seven years ending last date of month previous to the one in
which tenders are invited. It also provides that the bidder who
has done one similar work costing not less than 64% of
estimated cost is eligible to participate in the tender.
c) The last date of submission of the bid and other documents, as
per the NIT, was 17.06.2022 at 15:00 hours. However, the same
was extended by way of multiple corrigendum to 23.06.2022 up
to 15:00 hours, with 23.06.2022 at 15:30 hours as the time and
opening of Eligibility-cum-Technical Bid.
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d) The Petitioner submitted the technical bid, along with the
requisite documents, and in order to show eligibility as per
Clause 1(a) of the bid document, the Petitioner supplied
documents with regard to completion of a contract for execution
of SITC of Multi-Camera Mobile Van for outdoor production in
HDTV format in the year 2016 for Doordarshan. It is stated that
the value of the total work was Rs. 40,24,89,000/-, and after
factoring in an escalation of 7% per year, the total value of the
contract now amounts to Rs. 57,15,34,380/- after 6 years which
is more than 64% of the estimated cost.
e) Vide letter dated 24.06.2022, clarifications were sought by the
Respondent No.1 from the Petitioner with regard to the previous
work experience stating that the actual value of work had not
been mentioned, and that though the time period of execution of
work was 12 months in the acceptance letter of work, however,
the time taken had been approximately three years.The
Petitioner was, therefore, requested to furnish the required
documents/clarifications within five days of the letter, failing
which it would have been assumed that the requisite
documents/clarification was not available with the Petitioner.
Vide reply dated 29.06.2022, the Petitioner stated that there was
no difference between the value of works as per A/T, i.e. Rs.
40,24,89,000/- and the actual value of the work done, i.e. Rs.
40,24,89,000/. It was further stated that as per the governing
conditions of the A/T [Clause 5 and Clause 15(h)], the
guarantee/warranty period would form a part of the contract,
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and as this period was for 24 months, it aptly explained the three
years period.
f) Vide letter dated 07.07.2022, the Petitioner was informed that
they had been found to be ineligible for opening of the financial
bid due to its inability of fulfilling the eligibility criteria of work
experience of required value as per definition of similar work
given in the NIT. For the approved eligible bidders, the
financial bid was to open on 08.07.2022 at 15:00 hours.
g) Aggrieved by the letter dated 07.07.2022, the Petitioner has
approached this Court by way of the instant writ petition.
3. Mr. Sanjiv Sen, learned Senior Counsel appearing for the Petitioner,
states that the impugned letter dated 07.07.2022 has been issued without
any logic and is liable to be quashed as the sole reason for the
disqualification of the Petitioner is that the Petitioner allegedly failed to
complete works of a similar nature within the last seven years. Mr. Sen
states that the relevant clause of the bid document, i.e. Clause 1(a), has been
satisfied by the Petitioner which is exemplified by the completion
certificate dated 15.06.2022 issued by the Additional Director General on
behalf of Prasar Bharti/Doordarshan wherein it has been unambiguously
noted that the Petitioner's contract with Prasar Bharti/Doordarshan was
completed on 11.07.2016. The learned Senior Counsel submits that this
certificate indicates that the work done by the Petitioner was executed in the
year 2016, and therefore, the Petitioner ought to have been allowed to
participate in the financial bid.
4. Mr. Sen, learned Senior Counsel for the Petitioner, argues that the
contract between the Petitioner and Prasar Bharti/Doordarshan was entered
into on 21.06.2013, and that Clause 7 of the contract stipulated for the
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delivery to be done within 12 months from the date of placement. He,
however, states that Clause 15(h) of the contract clearly sets out that the
guarantee/warranty, which forms a part of the contract, would remain in
force for a period of 24 months. Consequently, Mr Sen submits that though
the date of delivery was 20.06.2014, however, by including the period of
warranty/guarantee, the date of completion of the contract as per the final
certificate would be 11.07.2016, thereby rendering the Petitioner eligible
for bidding.
5. The learned Senior Counsel for the Petitioner submits that the issue
that is to be determined by this Court is whether the work done by the
Petitioner and the inclusion of the warranty/guarantee period in the date of
completion would entail that the Petitioner had satisfactorily finished
similar works within the last seven years. Mr. Sen further submits that the
contract between the Petitioner and Prasar Bharti/Doordarshan was not a
contract simpliciter for sale of goods, but it was also a service contract, and
that guarantees were necessary as they were a financial hedge that indicated
that the equipment was working well even after the supply and commission
of the equipment. The learned Senior Counsel contends that a fresh
performance bond/Bank Guarantee had been demanded by Prasar
Bharti/Doordarshan in December 2014, i.e. after the letter issued in
September 2014, and that this can only mean that the contract subsisted till
2016. He, therefore, submits that the guarantee/warranty must form a part
of the contract.
6. The learned Senior Counsel for the Petitioner submits that the
decision taken vide the impugned letter dated 07.07.2021 indicates that the
actions of the Respondents are mala fide, arbitrary and unreasonable in
nature, and were meant to favour a certain bidder, i.e. Respondent No.3
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who was impleaded during the course of proceedings. Mr. Sanjiv Sen
argues that, despite not having any requisite work experience, the
Respondent No.3 was favoured by Respondent No.1, and that the
conditions set in the bidding document were only to unfairly and illegally
accommodate Respondent No.3. Mr. Sen relies upon Jagdish Mandal v.
State of Orissa and Ors., (2007) 14 SCC 517, to submit that the limited
scope of judicial review of administrative action is intended to prevent
arbitrariness, irrationality, unreasonableness, biasness and mala fides.
Relying upon the said Judgement, Mr. Sen submits that the Court can
interfere in tender or contractual matters if the process adopted or decision
made by the erring authority is mala fide or intended to favour someone.
7. Per contra, Mr. Chetan Sharma, learned ASG appearing for the
Respondents, submits that Clause 1(a) of the bid document categorically
notes that the bidder should have satisfactorily "completed the works". He
states that the term "work" has been defined in the bid document as "SITC
of - Telecast/Broadcast equipments i/c Cameras, Television Studio or/and
Audio-visual works, Servers, networking or/and Teleport equipments", and
that the usage of the word "works" implies that "contract" and the "work"
done stand on different footing. The learned ASG submits that
"warranty/guarantee" cannot be stated to be a part of the "work" done by
the Petitioner.
8. The learned ASG relies upon Agmatel India Private Limited v.
Resoursys Telecom and Ors., (2022) 5 SCC 362, to submit that the author
of the tender document is taken to be the best person to understand and
appreciate its requirement. Therefore, if the interpretation of the author is
manifestly in consonance with the language of the tender document or
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subserving the purchase of the tender, then the Court should restrain itself
from interfering.
9. Mr. Chetan Sharma also cites Clause 15(h) of the contract entered
into between the Petitioner and Prasar Bharti/Doordarshan to submit that
the aspect of Guarantee/Warranty is merely an after-sales service that is
provided by the contractor for a period of 24 months, and can, by no stretch
of imagination, be termed as a part of the actual provision of
service/equipment by the Petitioner. He states that, in view of this, the
Petitioner does not satisfy the eligibility requirement of having done any
similar work in the past seven years, and therefore, the impugned letter
dated 07.07.2021 issued by the Respondent No.1 should not be quashed.
10. Heard Mr. Sanjiv Sen, learned Senior Counsel for the Petitioner, Mr.
Chetan Sharma, learned ASG, and perused the material on record.
11. The short question which arises before this Court in the instant matter
is whether the interpretation of the bid document could be deemed to
include the bank guarantee/warranty as a part of the contract, and whether
the disqualification of the Petitioner by the Respondent No.1 is so arbitrary
and mala fide that it warrants the interference of this Court.
12. At the outset, this Court deems it pertinent to delineate the inherent
limitations in the exercise of power of judicial review of contractual
powers. While exercising such a power, in respect of contracts entered into
on behalf of the State, it has been observed consistently by the Supreme
Court that the Court may only interfere in an administrative decision if, and
only if, the same is arbitrary, irrational, unreasonable, mala fide or biased.
In the absence of these situations, the Courts must not countenance
interference with the decision merely at the behest of an unsuccessful
bidder in respect of a technical or procedural violation.
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13. The aforementioned observation was made by the Supreme Court in
the case of Tata Cellular v. Union of India, (1994) 6 SCC 651, wherein it
was categorically noted that the Government is the guardian of the finances
of the State; it is expected to protect the financial interest of the State and,
therefore, the right to refuse the lowest or any other tender is always
available to the Government. The relevant portion of the said Judgement
has been reproduced as under:
"70. It cannot be denied that the principles of judicial
review would apply to the exercise of contractual
powers by Government bodies in order to prevent
arbitrariness or favouritism. However, it must be
clearly stated that there are inherent limitations in
exercise of that power of judicial review. Government
is the guardian of the finances of the State. It is
expected to protect the financial interest of the State.
The right to refuse the lowest or any other tender is
always available to the Government. But, the
principles laid down in Article 14 of the Constitution
have to be kept in view while accepting or refusing a
tender. There can be no question of infringement of
Article 14 if the Government tries to get the best
person or the best quotation. The right to choose
cannot be considered to be an arbitrary power. Of
course, if the said power is exercised for any
collateral purpose the exercise of that power will be
struck down.
71. Judicial quest in administrative matters has been
to find the right balance between the administrative
discretion to decide matters whether contractual or
political in nature or issues of social policy; thus they
are not essentially justiciable and the need to remedy
any unfairness. Such an unfairness is set right by
judicial review.
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74. Judicial review is concerned with reviewing not
the merits of the decision in support of which the
application for judicial review is made, but the
decision-making process itself.
*****
77. The duty of the court is to confine itself to the
question of legality. Its concern should be:
1. Whether a decision-making authority exceeded
its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural
justice,
4. reached a decision which no reasonable
tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether
a particular policy or particular decision taken in the
fulfilment of that policy is fair. It is only concerned
with the manner in which those decisions have been
taken. The extent of the duty to act fairly will vary
from case to case. Shortly put, the grounds upon
which an administrative action is subject to control by
judicial review can be classified as under:
(i) Illegality : This means the decision-maker
must understand correctly the law that regulates
his decision-making power and must give effect
to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
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The above are only the broad grounds but it does not
rule out addition of further grounds in course of time.
As a matter of fact, in R. v. Secretary of State for the
Home Department, ex Brind [(1991) 1 AC 696] , Lord
Diplock refers specifically to one development,
namely, the possible recognition of the principle of
proportionality. In all these cases the test to be
adopted is that the court should, "consider whether
something has gone wrong of a nature and degree
which requires its intervention".
14. In Central Coalfields Limited and Anr. v. SLL-SML (Joint Venture
Consortium) and Ors., (2016) 8 SCC 622, the Supreme Court had observed
that a contract is a commercial transaction, and evaluating tenders and
awarding contracts are essentially commercial functions. In view of this,
the power of judicial review should not be permitted to be invoked to
protect private interests at the cost of public interest, or to decide
contractual disputes. The Supreme Court in the matter therein stated as
under:
"43. Continuing in the vein of accepting the inherent
authority of an employer to deviate from the terms and
conditions of an NIT, and reintroducing the privilege-
of-participation principle and the level playing field
concept, this Court laid emphasis on the decision-
making process, particularly in respect of a
commercial contract. One of the more significant
cases on the subject is the three-Judge decision in
Tata Cellular v. Union of India [Tata Cellular v.
Union of India, (1994) 6 SCC 651] which gave
importance to the lawfulness of a decision and not its
soundness. If an administrative decision, such as a
deviation in the terms of NIT is not arbitrary,
irrational, unreasonable, mala fide or biased, the
courts will not judicially review the decision taken.
Similarly, the courts will not countenance interference
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with the decision at the behest of an unsuccessful
bidder in respect of a technical or procedural
violation. This was quite clearly stated by this Court
(following Tata Cellular [Tata Cellular v. Union of
India, (1994) 6 SCC 651] ) in Jagdish Mandal v. State
of Orissa [Jagdish Mandal v. State of Orissa, (2007)
14 SCC 517] in the following words: (SCC p. 531,
para 22)
"22. Judicial review of administrative action is
intended to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its
purpose is to check whether choice or decision is
made "lawfully" and not to check whether choice
or decision is "sound". When the power of
judicial review is invoked in matters relating to
tenders or award of contracts, certain special
features should be borne in mind. A contract is a
commercial transaction. Evaluating tenders and
awarding contracts are essentially commercial
functions. Principles of equity and natural justice
stay at a distance. If the decision relating to
award of contract is bona fide and is in public
interest, courts will not, in exercise of power of
judicial review, interfere even if a procedural
aberration or error in assessment or prejudice to
a tenderer, is made out. The power of judicial
review will not be permitted to be invoked to
protect private interest at the cost of public
interest, or to decide contractual disputes. The
tenderer or contractor with a grievance can
always seek damages in a civil court. Attempts by
unsuccessful tenderers with imaginary
grievances, wounded pride and business rivalry,
to make mountains out of molehills of some
technical/procedural violation or some prejudice
to self, and persuade courts to interfere by
exercising power of judicial review, should be
resisted. Such interferences, either interim or
final, may hold up public works for years, or
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delay relief and succour to thousands and
millions and may increase the project cost
manifold."
This Court then laid down the questions that ought to
be asked in such a situation. It was said: (Jagdish
Mandal case [Jagdish Mandal v. State of Orissa,
(2007) 14 SCC 517] , SCC p. 531, para 22)
"22. ... Therefore, a court before interfering in
tender or contractual matters in exercise of
power of judicial review, should pose to itself the
following questions:
(i) Whether the process adopted or decision
made by the authority is mala fide or intended to
favour someone;
or
Whether the process adopted or decision made is
so arbitrary and irrational that the court can
say: "the decision is such that no responsible
authority acting reasonably and in accordance
with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should
be no interference under Article 226."
15. Relying upon Tata Cellular v. Union of India (supra) and Central
Coalfields Limited and Anr. v. SLL-SML (Joint Venture Consortium) and
Ors. (supra), the Supreme Court noted in Afcons Infrastructure Limited v.
Nagpur Metro Rail Corporation Limited and Anr., (2016) 16 SCC 818, that
if the decision-making process is mala fide or is intended to favour
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someone, then interference on the part of the Court would be permissible.
The relevant paragraph iterating the same is reproduced as under:
"11. Recently, in Central Coalfields Ltd. v. SLL-SML
(Joint Venture Consortium) [Central Coalfields Ltd. v.
SLL-SML (Joint Venture Consortium), (2016) 8 SCC
622 : (2016) 4 SCC (Civ) 106 : (2016) 8 Scale 99] it
was held by this Court, relying on a host of decisions
that the decision-making process of the employer or
owner of the project in accepting or rejecting the bid
of a tenderer should not be interfered with.
Interference is permissible only if the decision-making
process is mala fide or is intended to favour someone.
Similarly, the decision should not be interfered with
unless the decision is so arbitrary or irrational that
the Court could say that the decision is one which no
responsible authority acting reasonably and in
accordance with law could have reached. In other
words, the decision-making process or the decision
should be perverse and not merely faulty or incorrect
or erroneous. No such extreme case was made out by
GYT-TPL JV in the High Court or before us.
12. In Dwarkadas Marfatia and Sons v. Port of
Bombay [Dwarkadas Marfatia and Sons v. Port of
Bombay, (1989) 3 SCC 293] it was held that the
constitutional courts are concerned with the decision-
making process. Tata Cellular v. Union of India [Tata
Cellular v. Union of India, (1994) 6 SCC 651] went a
step further and held that a decision if challenged (the
decision having been arrived at through a valid
process), the constitutional courts can interfere if the
decision is perverse. However, the constitutional
courts are expected to exercise restraint in interfering
with the administrative decision and ought not to
substitute its view for that of the administrative
authority. This was confirmed in Jagdish Mandal v.
State of Orissa [Jagdish Mandal v. State of Orissa,
(2007) 14 SCC 517] as mentioned in Central
Coalfields [Central Coalfields Ltd. v. SLL-SML (Joint
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Venture Consortium), (2016) 8 SCC 622 : (2016) 4
SCC (Civ) 106 : (2016) 8 Scale 99] .
13. In other words, a mere disagreement with the
decision-making process or the decision of the
administrative authority is no reason for a
constitutional court to interfere. The threshold of mala
fides, intention to favour someone or arbitrariness,
irrationality or perversity must be met before the
constitutional court interferes with the decision-
making process or the decision."
16. Flowing from the aforesaid Judgement, it is clear as day that the
scope of interference by way of judicial review in tender matters is
extremely limited, and can only be justified if done to rectify patent
arbitrariness, unreasonableness, mala fides, or bias, in the administrative
decision. In the absence of the same, the Court must tie its hands and
should not interfere, even if a procedural aberration or error in assessment
or prejudice to a tenderer is made out.
17. In the instant case, the sole contention of the Petitioner is based upon
the conjunctive interpretation of Clause 1(a) of the bid document and
Clause 15(h) of the contract with Prasar Bharti/Doordarshan to arrive at the
conclusion that the 24 months period of warranty would be inclusive of the
contract. The Petitioner contends that the completion certificate dated
15.06.2022, wherein the Date of Completion has been noted to be
11.06.2016, squarely places the Petitioner within the eligibility criteria with
regard to having done similar works in the past seven years as mandated by
Clause 1(a). At this juncture, this Court deems it fit to reproduce Clause
1(a) of the bid document, as well as Clause 15(h) of the contract with Prasar
Bharti/Doordarshan:
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"Clause 1(a) of the bid document
1. Contractors/ firms who fulfill the
following requirements shall be eligible to apply.
Joint ventures are not accepted.
(a) Should have satisfactorily completed the
works as mentioned below during the last Seven
years ending last date of month previous to the
one in which tenders are invited.
Three similar works each costing not less
than32% of estimated cost
OR
Two similar works each costing not less than
48% of estimated cost
OR
One similar work costing not less than 64% of
estimated cost.
Similar work shall mean works of "SITC of -
Telecast/Broadcast equipments i/c Cameras,
Television Studio or/and Audio-visual works,
Servers, networking or/and Teleport equipments"
The value of executed works shall be brought to
current costing level by enhancing the actual
value of work at simple rate of 7% per annum;
calculated from the date of completion to last day
of submission of bids.
Completion certificate for work experience
credential should clearly mention the date of
start of work, date of completion, total value of
work done, scope of work and agreement no. to
which it pertains.
For Work Experience credentials, the bidders are also
required to submit copy of agreement with BoQ/final
bill of the work with a separate sheet prepared
referring these documents specifically mentioning the
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components of BoQ according to which work qualifies
as similar work and actual amount of these
components in BoQ/executed as per agreement. Also
Bidders shall have to submit all relevant documents
i/c Tax deposit receipt i/e TDS/GST etc. for
confirming the authenticity of work experience
certificate and components of similar work."
*****
"Clause 15(h) of the contract with Prasar
Bharti/Doordarshan
h. Guarantee/ Warranty:
The following guarantee/ warranty shall form
part of this contract:-
The contractor/seller hereby declares that the good,
stores/articles sold/supplied to the purchaser under
this contract shall be of the best quality and
workmanship and new in all respect and shall be
strictly in accordance with the specification and
particulars contained/mentioned in contract. The
contractor/seller hereby guarantees that the said
goods/stores/articles would continue to conform to the
description and quality aforesaid for a period of 24
months from the date of commissioning of the said
goods/stores/ articles to the purchaser
notwithstanding the fact that the purchaser (inspector)
may have inspected and/or approved the said
goods/stores/articles if during the aforesaid period of
24 months the said goods/stores/articles be discovered
not to conform to the description and quality aforesaid
or not giving satisfactory performance or have
deteriorated and the decision of the purchaser in that
behalf shall be final and binding on the Contractor
/Seller and the purchaser shall be entitled to call upon
the contractor/seller to rectify the
goods/stores/articles or such portion thereof as is
found to be defective by the purchaser within a
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reasonable period, or such specified period as may be
allowed by the purchaser in his discretion on an
application made thereof by the contractor/Seller, and
in such an event, the above mentioned guarantee/
warranty period shall apply to the
goods/stores/articles rectified from the date of
rectification thereof, otherwise the contractor/seller
shall pay to the purchaser such compensation as may
arise by reasons of the breach of the warranty herein
contained.
(i) Guarantee that they will supply spare parts if and
when required on agreed price. The agreed basis
could be including but without any limitation and
agreed discount on the published catalogue or an
agreed percentage of profit on the landed cost
(ii) Guarantee to the effect that before going out of
production for the spare parts they will give adequate
advance notice to the purchaser of the equipment so
that the latter may undertake the balance of the
lifetime requirements
(iii) Guarantee to the effect that they will make
available the blueprints of the drawings of the spares
if any when required in connection with the main
equipment.
(iv) It is a condition of the contract that the contactor
shall be responsible for free after-sales service for
minimum period of 24 months from the date of
acceptance of the equipment by the consignee,
(v) a) The complete system including all
items/equipment vehicle & Chassis should be
guaranteed for two years of trouble free operation
from the date of commissioning. In case of any item or
equipment failure including software and hardware
within this period, the same shall be rectified or
replaced free of cost to Doordarshan at the site. In
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case, it is not rectified within one week, replacement
of the equipment shall be arranged by the bidder
b) The guarantee includes all the hardware, software
and modules of the complete system including vehicle.
c) The firm will provide up gradation of all the offered
software free of charge during the guarantee period"
18. Clause 7 of the Contract, which is relevant for the instant case, reads
as under:
"7. Date of Delivery
Within 12 Months from the date of placement of
this A/T i.e. 20.06.2014."
19. Clause 1(a) of the bid document distinctly notes that a bidder must
have satisfactorily completed works of similar nature during the last seven
years ending last date of month previous to the one in which tenders were
invited. The term "works" has also been elaborated to mean works of
"SITC - Telecast/Broadcast equipments i/c Cameras, Television Studio
or/and Audio-visual works, Servers, networking or/and Teleport
equipments". The Clause further states that the completion certificate must
clearly mention the date of start of work, date of completion, total value of
work done, scope of work, and agreement number to which it pertains.
20. A reading of Clause 7 of the contract between the Petitioner and
Prasar Bharti/Doordarshan shows that the date of delivery was to be
"within 12 months from the date of placement of this A/T i.e. 20.06.2014".
The learned ASG's submission that as the delivery of the product/services
was concluded in the year 2014 itself, the Petitioner cannot take the aid of
Clause 15(h) of the contract to state that the guarantee/warranty period of
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24 months to extend the contract period, cannot be rejected. It has further
been submitted by the learned ASG that the usage of the term "works"
implies that it is the date of delivery that needs to be taken into
consideration to calculate the period, and not the conclusion of the contract
itself. This Court finds weight in the above submission of the learned ASG
as a perusal of Clause 15(h) of the contract only reveals that the
guarantee/warranty period is styled merely as an "after-sales service"
period, and cannot be interpreted as a period which forms a part of the work
done by the Petitioner.
21. Furthermore, in Afcons Infrastructure Limited v. Nagpur Metro Rail
Corporation Limited and Anr. (supra), the Supreme Court had observed that
the owner or the employer of a project, who had authored the tender
documents, would be the best person to interpret the same, and the Courts
must accord due deference to their understanding and appreciation of the
same. This has been stated in the following:
"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."
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22. The Judgement relied upon by the learned ASG, i.e. Agmatel India
Private Limited v. Resoursys Telecom and Ors. (supra) becomes relevant at
this juncture as it reiterates the same finding that if the interpretation of the
author is manifestly in consonance with the language of the tender
document or subserving the purchase of the tender, then the Court should
restrain itself from interfering. The relevant portion can be read as follows:
"26. The abovementioned statements of law make it
amply clear that the author of the tender document is
taken to be the best person to understand and
appreciate its requirements; and if its interpretation is
manifestly in consonance with the language of the
tender document or subserving the purchase of the
tender, the Court would prefer to keep restraint.
Further to that, the technical evaluation or
comparison by the Court is impermissible; and even if
the interpretation given to the tender document by the
person inviting offers is not as such acceptable to the
constitutional court, that, by itself, would not be a
reason for interfering with the interpretation given."
23. This Court must not sit as an Appellate Authority over the
interpretation given by the Respondent No.1 and deference must be given
by the Court to Respondent No.1's interpretation of the bid document. The
contention of the Petitioner that the duration of the work done by the
Petitioner for Prasar Bharti/Doordarshan should include the
guarantee/warranty period cannot be accepted. Reliance placed by the
Petitioner on Jagdish Mandal v. State of Orissa (supra) is of no
consequence as the said Judgement cements the principle that judicial
review can only be exercised if the decision taken is arbitrary or if the
decision taken is meant to favour another bidder. This Court is of the
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opinion that the decision taken by Respondent No.1 is in consonance with
the terms and conditions of the bid document, and the averment of the
Petitioner that the decision of Respondent No.1 is to favour Respondent
No.3 is without any basis or concrete evidence.
24. In light of the above observations, the instant petition is dismissed,
along with the pending application(s), if any.
SATISH CHANDRA SHARMA, C.J.
SUBRAMONIUM PRASAD, J
AUGUST 05, 2022
Rahul
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