Delhi High Court
Rahee Infratech Limited vs Delhi Metro Rail Corporation ... on 24 February, 2023
Neutral Citation Number : 2023/DHC/001381
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th FEBRUARY, 2023
IN THE MATTER OF:
+ W.P.(C) 15245/2022 & CM APPLs. 47219/2022 & 50691/2022
RAHEE INFRATECH LIMITED ..... Petitioner
Through: Mr. Sandeep Sethi, Senior Advocate
& Mr. Rajshekhar Rao, Sr. Advocate
with Mr. Tine Abraham, Ms. Shivani
Rawat, Mr. Shourya Bari and Mr.
Mohit Agarwal, Advocates
versus
DELHI METRO RAIL CORPORATION LIMITED & ORS
..... Respondents
Through: Mr. Tarun Johri, Mr. Ankur Gupta,
Mr. Vishwjeet Tyagi, Advocates for
R-1
Mr. Amrita Prakash, Mr. Vishal
Ashwani Mehta, Advocates for R-2 to
R-4
Mr. Udit Seth, Ms. Priya Kanwat,
Advocates for R-6
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SUBRAMONIUM PRASAD, J.
1. Aggrieved by the rejection of its bid, the Petitioner has approached
this Court by filing the instant Writ Petition for quashing the impugned
communications dated 01.11.2022 whereby the Petitioner was informed that
its bid for the tender floated by Respondent No. 1 for installation, testing &
Neutral Citation Number : 2023/DHC/001381
commissioning of ballastless tracks including supply of fastening system,
buffer stop and others for Line No.7 Extension (Maujpur-Majlis Park)
(CH.0.0M to CH.12098.52M) of the Delhi Mass Rapid Transport System
Project, Phase-IV("Project"), has been rejected. Vide Email dated
01.11.2022, the Respondent No. 1 had informed the Petitioner that its bid
has been rejected during technical evaluation, as the Petitioner is technically
non-compliant. A summary of evaluation of technical bids dated 01.11.2022
was also circulated by Respondent DMRC, informing that the evaluation of
technical bids has been completed and the price bids of those bidders whose
bids have been considered substantially responsive to the requirements of the
bidding document shall be opened.
2. The facts in brief, leading to the instant writ petition are as follows:-
i. Respondent No.1/DMRC had floated a Tender for the purpose
of installation, testing & commissioning of ballastless tracks
including supply of fastening system, buffer stop and others for
Line No.7 Extension (Maujpur-Majlis Park) (CH.0.0M to
CH.12098.52M) of the Delhi Mass Rapid Transport System
Project, Phase-IV.
ii. The Petitioner herein, a public limited company incorporated
under the Companies Act, 1956, operating in the field of rail
tracks and bridges, participated in the afore stated Tender.
iii. It is stated that the Petitioner submitted its bid for the Tender on
13.07.2022 through an online bidding process and under its
Technical Bid, the Petitioner proposed supply of a fastening
system, namely, Pandrol Double Resilient Baseplate 21166
Assembly (VIPA DRS) - 2 Hole for 60E1 Rail ("PDRBA
Neutral Citation Number : 2023/DHC/001381
21166"). According to the Petitioner, the same is a re-
engineered version of its mother system, i.e., Pandrol Double
Resilient Baseplate assembly Drawing No. 13145 ("PDRBA
13145").
iv. It is stated that PDRBA 13145 was approved by the Ministry of
Railways on 07.10.2011 in terms of the requirements specified
in Performance Criteria of Fastening System for Ballastless
Track dated 21.05.2010, issued by the Ministry of Railways.
v. It is stated that PDRBA 13145too was a modified version of an
earlier version (PDRBA 13145‟s mother system) that had been
used in several metros for more than 15 years.
vi. It is stated that on the basis of changes in specifications brought
about vide Procedure for Safety Certification and Technical
Clearance of Metro Systems ("Safety Certification Procedure
2015") issued by the Ministry of Railways/ Research Designs
and Standards Organization ("RDSO") and feedback received
from Respondent No.1 with respect to the factors of economy
and compatibility in relation to track installation, the Petitioner
proceeded to modify PDRBA 13145 and developed a re-
engineered version, i.e., PDRBA 21166. It is stated that this re-
engineered version of its mother system provided benefits such
as lesser assembling and disassembling time due to fewer
components, and concrete saving.
vii. On 09.07.2020, Respondent No.5 herein, i.e., Pandrol Rahee
Technologies Private Limited ("Pandrol Rahee"), sent a
communication to Respondent No.1requesting for an approval
to introduce PDRBA 21166, citing several benefits it affords to
Neutral Citation Number : 2023/DHC/001381
fastening systems. A request was made by Pandrol Rahee for
submission of the relevant technical documents to the Ministry
of Railways and RDSO, for approval of PDRBA 21166.
viii. The said communication was responded to by the DMRC on
21.09.2020.Therein it stated that Pandrol Rahee may submit its
proposal for approval of PDRBA 21166 as a modification to the
existing approved PDRBA 13145 for further submission to
RDSO for consideration, under Para 4.6 of Annexure C-2
(Performance Criteria of Fastening System for Ballastless Track
on Metro Railways) of Safety Certification Procedure 2015
("2015 Performance Criteria"). Thus, on 26.09.2020,Pandrol
Rahee re-submitted the proposal to DMRC along with relevant
enclosures in terms of Para 4.6 of the 2015 Performance Criteria
for approval of PDRBA 21166, as the re-engineered version of
PDRBA 13145.
ix. Subsequently, on 23.12.2020, DMRC wrote to RDSO
requesting its approval for PDRBA 21166. In the said letter, it
had mentioned various benefits which were accorded to the
fastening system due to re-engineering and had requested for
approval of the same, for adoption in ballastless track of Metro
Rail System.
x. On 01.03.2021, RDSO had written to the Ministry of Railways
that the Track Design Directorate has examined the request put
forth by DMRC inclusive of all the Annexures for approval of
PDRBA 21166 as the re-engineered system of PDRBA 13145,
and the Directorate has advised that the proposal of DMRC may
be approved in terms of Clause 4.6 of Annexure C-2 of 2015
Neutral Citation Number : 2023/DHC/001381
Performance Criteria and requested the Railway Board to
accord approval, as requested by DMRC.
xi. On 15.03.2021, the Railway Board (Ministry of Railways),
through its Director had written to DMRC according
provisional approval of re-engineered design of PDRBA 13145
i.e., PDRBA 21166, subject to certain conditions. These being -
(1) Visual inspection report of all components of the fastening
system installed on the curve should be sent to RDSO at
intervals of 6 months (2) RDSO team will inspect this fastening
system after 2 years from the date of installation for evaluation
of final conclusion and (3) DMRC shall submit the performance
performa in compliance with Clause 1.2 of 2015 Performance
Criteria. It has also been pointed out by the Petitioner that on
19.07.2022, the Ministry of Railways, referring to the (Ministry
of Housing and Urban Affairs) MoHUA O.M. No. K-14011/
03/ 2022 MRTS-Coord., dated 07.06.2022, had stated that the
PDRBA 21166 was examined in consultation with RDSO and
that the DMRC may use the above fastening system subject to
the conditions laid down in aforesaid letter dated 15.03.2021,
and submit the performance to Ministry of Railways in the
Proforma in compliance with Clause 1.2 of the 2015
Performance Criteria. It was further stated that PDRBA 21166
can be used by other metros as per requirement, after obtaining
clearance from Ministry of Railways on submission of various
salient features of fastening system in the form of Annexure C-2
i.e., of 2015 Performance Criteria.
Neutral Citation Number : 2023/DHC/001381
xii. On 27.07.2022, the MoHUA had also written to all metro rail
corporations requesting them to take note of the decision of the
Ministry of Railways regarding PDRBA 21166 and referred to
the Ministry of Railways‟ letter dated 15.03.2021 regarding
approval of PDRBA 21166 and O.M. dated 19.07.2022 of the
Ministry of Railways whereby it was clarified that the fastening
system can also be used by other metros as per requirement,
subsequent to obtaining clearance from Ministry of Railways on
submission of various salient features of fastening system in the
form of 2015 Performance Criteria.
xiii. In the meantime, on 13.05.2022, DMRC floated the Tender for
the Project and the Petitioner had submitted its bid on
13.07.2022. Prior to the same, a set of pre-bid queries were also
raised by the Petitioner with respect to the bid specifications.
xiv. It is stated that Respondent No.1 opened its technical bid on
14.07.2022. On 24.08.2022, first set of queries were raised by
DMRC to the Petitioner which inter alia requested the
Petitioner to establish its eligibility and qualifications. On
02.09.2022, the Petitioner in consultation with Pandrol Rahee,
responded to the same.
xv. On 15.09.2022, a second set of queries to the Petitioner which
pertains to the nature of approval regarding PDRBA 21166, the
requirement under the tender for PDRBA 21166‟s „proven track
record‟, and certificates furnished by the Petitioner were raised.
It is stated that the same were responded by the Petitioner on
23.09.2022stating that PDRBA 21166 is not a new system but a
value / re-engineered version of its proven mother system, i.e.,
Neutral Citation Number : 2023/DHC/001381
13145, which also was a value/ re-engineered version of an
earlier system. It was stated that in light of the approvals
granted by the Ministry of Railways and RDSO, PDRBA 21166
could be used in all metros. Thereafter, on 01.11.2022, DMRC
proceeded to issue the impugned communications rejecting
Petitioner‟s technical bid.
xvi. Aggrieved by the said impugned communications rejecting
Petitioner‟s technical bid, the Petitioner has approached this
Court by filing the instant writ petition.
3. Learned Senior Advocate for the Petitioner, submits that the
impugned email is palpably erroneous because it merely states that the
Petitioner‟s bid is technically non-compliant without assigning any reason
whatsoever. He submits that the rejection of the Petitioner‟s bid is arbitrary
and the DMRC has unfairly ignored the Petitioner‟s bid which is in
accordance with the terms of the tender. It is submitted that in the absence of
any reasons for rejection in the impugned email, the Petitioner has been
constrained to challenge the same based on a presumption that the alleged
technical non-compliance with the bid relates to issues highlighted by
DMRC in its communication dated 15.09.2022. He submits that issues
highlighted by the Respondent No.1 were squarely addressed by the
Petitioner in its letter dated 23.09.2022, and not contested in any manner
whatsoever thereafter.
4. Learned Senior Counsel for the Petitioner submits that the
Respondent, without any intimation, on 01.11.2022, proceeded to issue the
impugned communications. He states that DMRC disqualified the Petitioner
summarily without ascribing any reasons on the said date and proceeded to
Neutral Citation Number : 2023/DHC/001381
open the financial bids without leaving any room for the Petitioner to seek
any clarification. It is stated that the Petitioner was left without any recourse
to seek reasons for disqualification or seek reconsideration of its technical
bid. It is contended that the aforesaid points towards DMRC‟s non-
application of mind, such that no other prudent person or instrumentality of
the state could have rejected the technical bid of the Petitioner for being
technically non-compliant. He states that Respondent No.1‟s rejection of the
Petitioner‟s technical bid was done so without assigning any cogent reasons
in a simple one-line email in complete breach of the legal principle requiring
State action to be supported by valid grounds.
5. Learned Senior Counsel for the Petitioner contends that PDRBA
21166 is a re-engineered/modified version of an earlier Fastening System,
PDRBA 13145 which was approved by the Ministry on 07.10.2011, in terms
of the requirements specified in the 2010 Performance Criteria. He contends
that since its approval, PDRBA 13145 has been used extensively and more
than 2 million sets of the same have been supplied to Indian metro projects
including DMRC. It has been submitted that the Ministry approved PDRBA
13145 only after being satisfied with its satisfactory performance and that its
mother system has been in use in several metros for the past 15 years. It has
been submitted that the requirement of 5 years proven track record was
dispensed with by the Railways and that was challenged before this Court in
Patil Vossloh Rail Systems Pvt. Ltd. v. Union of India & Ors.W.P. (C)
3351/2011. It is submitted that the Division Bench of this Court vide
Judgement dated 26.09.2012, was pleased to dismiss the said challenge and
has upheld the Ministry‟s satisfaction on the basis of the mother system‟s
proven track record. It was submitted that this Court categorically upheld the
position that the condition of „proven track record‟ in the 2010 Performance
Neutral Citation Number : 2023/DHC/001381
Criteria includes provenness of mother systems. It is submitted that proven
track record of modified system‟s mother system is sufficient to comply with
a requirement of „proven track record‟.
6. Learned Senior Counsel for the Petitioner has contended that the
approval granted for use of PDRBA 21166 has been done so, to facilitate its
use and adoption in DMRC‟s rail network, subject to compliance with
conditions regarding inspection and monitoring by RDSO since, admittedly,
PDRBA 21166 is a re-engineered system of its mother system. He contends
that the Ministry has sanctioned the use of PDRBA 21166 in other metros
throughout the country. Further, the Ministry‟s approval and subsequent
clarification dated 19.07.2022 must be construed to mean that PDRBA
21166 is ready to be put in use. He further contends that DMRC‟s rejection
of the technical bid on the purported ground that the approval cannot be
construed as approval for use and adoption of PDRBA 21166 in the Project
is erroneous and arbitrary, keeping in mind the findings of this Court in the
case of Patil Vossloh (supra). He submits that insistence on performance for
3 years is irrational and contrary to the Ministry‟s intent to facilitate the
adoption and use of PDRBA 21166. He further contends that PDRBA 13145
has been deployed globally for the past 15 years and supplied to various
Indian metros since 2012. As such, there is no dispute that PDRBA 13145 is
a proven system within the meaning of Clause 6.3 (A) (iii) of Particular
Specifications and, therefore, has a proven track record in India and abroad.
7. Learned Senior Counsel for the Petitioner contends that in terms of the
decision in the case of Patil Vossloh (supra), a modified and value-
engineered system does not render it doubtful, rather, it builds on and
enhances the technical capability and viability. The re-engineered system
doesn‟t require for its credentials to be examined denovo and must be
Neutral Citation Number : 2023/DHC/001381
examined on the basis of proven track record of mother system. He states
that in light of the Judgement in the case of Patil Vossloh (supra), it would
be wholly inequitable if, in similar facts, the present rejection is allowed to
stand and would result in differential treatment. He submits that Clause 6.3
(A)(v) of Part 2 of the Tender Document cannot be construed to be read
restrictively to mean that a modified system needs to prove a track record
independent of the mother system and that the same is against settled law
and public interest, laying an impossible burden on a bidder. He further
submits that Respondent No. 1‟s stand that since the tender requires a
modified system to have a proven track record of 3 years, PDRBA 21166
has failed to independently satisfy such requirement despite the proven track
record of its mother system PDRBA 13145, is unjustified. He states that
given the Judgement of this Court in the case of Patil Vossloh (supra) and
the Ministry‟s position, it is not open for Respondent No. 1 to insist that
PDRBA 21166 should independently satisfy the proven track record
criterion set out in the tender document for the Project.
8. Per contra, Mr. Tarun Johri, learned Counsel for the Respondent
No.1, contends that the Petitioner was aware since the publishing of the
Project that PDRBA 21166 is not meeting the provenness criteria in terms of
the provisions of the tender floated. He contends that prior to opening of the
bid, a pre-bid query was raised by Pandrol Rahee, requesting Respondent
No. 1 to remove the requirement of "performance record of three years in
service", i.e., provenness as highlighted in Clause 6.3 A (iii) and 6.3 C.1 of
Employer‟s Requirements-Particular Specifications, by stating that PDRBA
21166 is a re-engineered version of PDRBA 13145 and that the same stands
already proven in India. To this, it was specifically replied to by DMRC that
no change in tender conditions would be allowed. He submits that the
Neutral Citation Number : 2023/DHC/001381
aforesaid pre-bid query was also published on the NIC portal for information
of all the prospective bidders as per Clause 7 of Instructions to Bidders. It
has been stated that despite being aware of the position regarding the
provenness requirement and the stand of DMRC in not bringing about
changes to the tender conditions, the Petitioner still proceeded to participate
in the bidding process with a proposal for use of PDRBA 21166 fastening
system, projecting the same to be a re-engineered version of PDRBA 13145.
He also submits that the Petitioner vide pre-bid query raised the same issue
which was rejected, and after participating in the tender, the Petitioner
cannot turn back and challenge the very same condition.
9. Learned Counsel for Respondent No.1 submits that a similar post-bid
query was raised by another prospective bidder, M/s Apurvakriti
Infrastructure Pvt. Ltd., proposing PDRBA 21166, however, it subsequently
chose to use another fastening system 336 as that met the tender conditions.
He submits that with regards to the contentions of the Petitioner regarding
applicability of the Judgement of this Court in the case of Patil Vossloh
(supra), it has been submitted that the same is misplaced as the issue which
arose therein centred around an Office Order dated 21.05.2010 issued by the
Ministry of Railways wherein the satisfactory performance record of the
fastening system was mentioned as minimum 5 years for becoming eligible
to supply fastening system to metro railways for laying ballastless track. He
contends that in the said case, the Petitioner did not challenge any tender
condition and the judicial discussion therein did not revolve around the
terms of the tender document and the conditions of performance criteria.
10. Learned Counsel for Respondent No.1 contends that Respondent No.1
has freedom to fix its own tender conditions for ensuring technical and
safety satisfaction. He submits that the approval of Ministry of Railways
Neutral Citation Number : 2023/DHC/001381
granted to the Petitioner for PDRBA 21166 is only a provisional one, subject
to certain conditions. He further submits that it is the stand of Respondent
No.1 that PDRBA 21166 is not even a re-engineered version of PDRBA
13145 and that the same cannot be construed as its mother system since the
provisional approval granted vide communication dated 15.03.2021 was
done so under Clause 1.2 of Annexure C-2 of Procedure for Safety
Certification, 2015, which relates to a new fastening system. He contends
that it is evident from the drawings, comparison of parameters and
component details of both the fastening systems that almost all parts are
different. He submits that due to the aforesaid differences, Ministry of
Railways has not considered PDRBA 21166 as a re-engineered version of its
mother system.
11. Learned Counsel for Respondent No.1 submits that PDRBA 13145
had a 4 Anchor System whereas PDRBA 21166 has a 2 Anchor System so
these two systems have completely different mechanisms of structural
strength to transfer loads/stresses. He also submits that the Petitioner had in
fact not complied with conditions stipulated in Clause 6.3 (A) (iii) of
Employer‟s Requirement - Particular Specification, wherein the first
condition was, the approval of Ministry of Railways and the second was that
such modified fastening system should have a proven track record, i.e.,
satisfactory performance record of minimum three years in service on any
two different established railway systems. He further submits that with
regards to the contention of the Petitioner that DMRC has engaged PDRBA
21166 in relation to Mumbai Metro Rail Project and has used a fastening
system akin to PDRBA 21166 in Dhaka Mass Rapid Transit Development
Project Line-6, is erroneous. He further contends that for DMRC Tender
MT-8 for Mumbai Metro, a third party inspecting agency of world repute
Neutral Citation Number : 2023/DHC/001381
had been nominated as a technical assessor. M/s Bureau Veritas i.e., the third
party inspecting agency vide its report had infact submitted that the result of
its inspection was „unsatisfactory‟.
12. Learned Counsel for Respondent No.1submits that the findings of the
inspection report buttress the stand of Respondent No.1 that PDRBA 21166
is not in fact a re-engineered version of its alleged mother system, i.e.,
PDRBA 13145. He contends that with regards to the Dhaka Project, DMRC
is one of the consortium members of NKDM Association and that DMRC
does not have any lead role in execution of the project. He also submits that
Dhaka Metro is a foreign project and does not fall under the Procedure for
Safety Certification, 2015. He further contends that the technical
requirements for the Dhaka and Metro Projects are also not known, however,
the provenness criterion with respect to the technical qualification for the
instant Project was known to the Petitioner, and it has squarely failed to
comply with the same.
13. Learned Counsel for Respondent No.1 contends that the employer has
freedom to lay down its technical requirement for a particular project, which
the prospective bidders have to comply with. He submits that the Petitioner
is seeking striking down of the tender conditions subsequent to having
participated in the bidding process, not heeding the responses to the queries
sent by the Respondent No. 1, and getting its bid rejected. It is submitted that
despite clear intimation regarding PDRBA 21166 being technically non-
responsive, prior to rejection, the Petitioner proceeded to participate in the
bidding process with the same fastening system. He further submits that the
Petitioner is in a way trying to change the goal post by impugning the
rejection. After having participated in the tender process, the bidder cannot
seek explicit change in tender conditions or seek to place an interpretation on
Neutral Citation Number : 2023/DHC/001381
the conditions which run against the commercial and technical wisdom
exercised by DMRC while floating the said tender in the open market. It is
submitted that the Tender Documents were issued with the objective that
DMRC should receive a fastening system which technically suits its safety,
operation and maintenance objectives with respect to metros. He contends
that the impugned communications were issued along with a discretion
afforded to the Petitioner to seek out any clarifications with regards as to
why the Petitioner‟s bid was declared as technically non-responsive.
However, till date, the Petitioner has not approached Respondent No.1
seeking any clarification.
14. Heard learned Counsel for the parties and perused the material on
record.
15. The Respondent No.1 called for a tender for installation, testing and
commissioning of ballastless tracks including supply of fastening system,
buffer stop and others for Line No.7 Extension (Maujpur-Majlis Park)
(CH.0.0M to CH.12098.52M) of the Delhi Mass Rapid Transport System
Project, Phase-IV.
16. The Petitioner participated in the tender and the tender submitted by
the Petitioner has been held to be non-responsive on the ground that the
system offered by the Petitioner does not comply with the requirements of
the tender. The relevant portion of Paragraph 6.3 of the general
specifications of the bid document which provides for the Technical
Specifications of Fastening System reads as under:
"6.3 TRACK COMPONENTS
Technical Specifications of Fastening System
Neutral Citation Number : 2023/DHC/001381
A. Essential requirements of Proposed Fastening
system
(i) MOR Approval for the Proposed Fastening
system is Mandatory. The Fastening system
proposed by the contractor shall comply to the
Performance Criteria issued by Ministry of
Railways vide their letter No.2009/Proj/MAS/9/2
dated 18.02.2015 and approved by Ministry of
Railways given in Annexure C of Particular
Specification to Employer's Requirement.
(ii) The Proposed Fastening System for ballast less
track should comply with performance criteria
issued by Ministry of Railways under Annexure
C II of Procedure of safety certification &
Technical clearance for Metro Systems,
December 2015.
(iii) The proposed Fastening System should have a
Proven Track record. The fastening system
should have satisfactory performance record of
minimum three years in service in regular
revenue operation on ballastless track on any
two different established railway systems
(except exclusive freight tracks) for a length of
at least 5 km in each metro having speed
potential of at least 80 kmph & design axle load
16T irrespective of wheel profile and rail
section.
(iv) The tenderer shall submit the approval of
Ministry of Railways along with the compliance
of all observations of MOR, if any, while
granting such approvals and also to submit the
technical details and test reports to substantiate
the compliance of performance criteria under
Annexure C II of Procedure of safety
certification & Technical clearance for Metro
Neutral Citation Number : 2023/DHC/001381
Systems issued on December 2015 by Ministry of
Railways.
(v) Any deviation/Modification in Proposed
fastening system against Para4.6 of
Performance criteria issued by Ministry of
Railways under Annexure C II of Procedure of
safety certification & Technical clearance for
Metro Systems, December 2015 will be
considerable only if, system with deviation/
modification is approved by Ministry of
Railways and Modified system will have Proven
Track record as mentioned in A.(iii). In such a
case an Assembly Test will be required to be
done with the fresh samples and same to be
witnessed by DMRC nominated Third Party
Inspecting agency/DMRC.
B. The Technical Proposal to be submitted by tenderer,
shall clearly demonstrate the understanding and
comprehension of the supply, including Preliminary
Scheme/drawings of Fastenings System.
C. Regarding Fastening System for Ballastless track
With respect to the fastening system for ballastless
track proposed by the Tenderer, the following
minimum information/ certification should be provided
by the tenderer.
C.1 Certificate of Provenness of the fastening
In terms of Paragraph 4.1 (ii) of Performance Criteria
of Fastening System enclosed at Annexure C of
Particular Specification to Employer's Requirement,
the Tenderer shall submit certificate/s of performance
from user railway administration, including proof of
use of the same fastening system encompassing the
Neutral Citation Number : 2023/DHC/001381
same set of components (as is being offered by the
Tenderer in this Tender), to the effect that the fastening
system has satisfactory performance record for
minimum 3 years in service in ballastless track in their
system(s). The certificate should be accompanied with
the drawing of the fastening system and its components
to clearly establish that the fastening system including
its components whose performance has been certified
is exactly same as the fastening system including its
components that has been proposed by the Tenderer in
this Tender. The drawings need not be certified by the
client.
The certificate(s) should also contain, but not limited
to, the following information
(i) Details of the user railway administration such as
the Name of the railway administration and its contact
person, address, telephone number, e-mail id, Fax
number etc;
(ii) Name of the main line in which the system is in use
for minimum 3 years
C.2 Assembly Tests reports of the fastening system
In terms of Paragraph 4.7 of Performance Criteria of
Fastening System contained in Railway Board's letter
No. 2009/Proj/MAS/9/2 dated 18.02.2015, enclosed at
Annexure C of Particular Specification to Employer's
Requirement of these Tender documents, the Tenderer
should submit test report for the fastening system
from reputed independent institute/laboratory. The
test reports should be accompanied with the drawing
of the fastening system and its components to clearly
establish that the fastening system including its
components which have been tested and reported
upon is exactly same as the fastening system
including its components that has been proposed by
the Tenderer in this Tender. (emphasis supplied)
Neutral Citation Number : 2023/DHC/001381
17. A perusal of Paragraph 6.3 (A) (iii) shows that the proposed fastening
System should have a Proven Track record. The fastening system should
have satisfactory performance record of minimum three years in service in
regular revenue operation on ballastless track on any two different
established railway systems for a length of at least 5 km in each metro
having speed potential of at least 80 kmph & design axle load of 16T
irrespective of wheel profile and rail section.
18. A perusal of the tender documents and the relevant clauses shows that
the tenderers must be in a position to supply a fastening system which
though may have been modified by them vis-à-vis the original fastening
system but the same should have been approved by the Ministry of
Railways, the performance criteria of Annexure C-2, which is the Procedure
of Safety Certification & Technical Clearance of Metro Systems and that the
modified fastening system should have a proven track record, i.e., it should
have a satisfactory performance record of minimum three years in service or
on any two different established railway systems.
19. The issue which has been raised is that the version which has been
provided by the Petitioner is re-engineered version of an earlier fastening
system, and therefore, since the earlier system is already stood the test of a
satisfactory performance record, the re-engineered version need not once
again be put for a fresh satisfactory performance record. The Petitioner has
placed reliance upon Annexure C-2 of the safety certification and technical
clearance of metro system which deals with performance criteria of fastening
system for ballastless track. Paragraph 1.1 and 1.3 of Part A of Annexure C-
2 reads as under:
"1.2 A new fastening system, which is fully compliant
to performance criteria and not approved by MoR can
Neutral Citation Number : 2023/DHC/001381
also be used by Metro Railways/MRTS system as they
are free to choose fastening systems for ballastless
track complying with this performance criterion. The
detail of such fastening system used shall be submitted
to MoR and the same shall be kept in observation by
MoR for a period of 2 years under service conditions in
association of Metro Railways/MRTS system. The
Performa for the monitoring performance shall be
advised by MoR to concerned Metros Railways/MRTS
system. After successful performance for 2 years,
Metro Railways/MRTS system shall process for
approval of MoR for further use of fastening system.
1.3 The fastening system already approved by MOR as
per previous performance criteria for ballastless track
dated 21.5.2010 will not require fresh clearance as per
this revised criteria and any of these systems can be
used by Metro/ MRTS systems."
20. The Petitioner, while placing reliance upon the abovementioned
Paragraph 1.3 Part A of Annexure C-2, contends that since the fastening
system has been approved by the Ministry of Railways as per the previous
performance criteria, the same do not require a fresh clearance. The
contention of the Petitioner cannot be accepted for the reason that Paragraph
1.2 of Part A of Annexure C-2 which is the Procedure for safety certification
and technical clearance for Metro Systems provides that the fastening system
submitted to the Ministry of Railways will be kept in observation by
Ministry of Railways for a period of two years under service conditions in
association of Metro Railways/MRTS system. It also provides that the
Performa for the monitoring performance shall be advised by Ministry of
Railways to concerned Metros Railways/MRTS system and only after
successful performance for 2 years, the Metro Railways/MRTS system shall
process for approval of Ministry of Railways for further use of fastening
Neutral Citation Number : 2023/DHC/001381
system. In any event, it is always for the tenderer to insist on a satisfactory
performance record and it cannot be said that the insistence of satisfactory
performance record for three years as stipulated in Clause 6.3(A) (iii) is
unwarranted. The insistence on a performance record is to ensure safety of
the passengers which is paramount.
21. Reliance has been placed by the Petitioner on letters dated 19.07.2022
and 27.07.2022 to state that it has been accepted by the Ministry of Railways
and that PDRBA 21166 is only a modified version of the earlier fastening
system of PDRBA 13145 and the same has been approved by the Ministry of
Railways on 07.10.2011 and the Government of India has also approved the
re-engineered design of the Pandrol Double Resilient Baseplate Assembly
System (PDRBA) 21166 for Delhi Metro Rail Corporation Limited. It is
stated that in view of the aforesaid, the requirement of satisfactory
performance record is not necessary in terms of the letters dated 19.07.2022
and 27.07.2022. The said the contention of the Petitioner cannot be accepted
for the reason that even if it has been approved by the Ministry of Railways
still it will have to perform for 2 years before it is approved by the Ministry
of Railways for further use. The letters dated 19.07.2022 and 27.07.2022
read as under:
"GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
(RAILWAY BOARD)
2021 /Proj ./DMRC/FS-BLT /30/40
New Delhi, dated 19 07.2022
OFFICE MEMORANDUM
Neutral Citation Number : 2023/DHC/001381
Sub: Approval of Re-engineered design of "Pandrol
Double Resilient Baseplate Assembly" fastening
system 21166 for Delhi Metro Rail Corporation Ltd.
Ref: (i) MoHUA OM no. K-14011/03/2022-MRTS-
Coord .dated 07.06 2022
(ii) Board's letter of even number dated 15 03 2021.
With respect to MoHUA OM referred at (i)
above, it is stated that DMRC proposal for Re-
engineered design of two hole "Pandrol Double
Resilient Baseplate Assembly fastening system 21166
as Annexure-I was examined in Railway Board in
consultation with RDSO and a letter under reference
(ii) above for use of above fastenmg system has been
issued with certain conditions which are self-
explanatory.
DMRC may use the above fastening system
subject to the conditions laid down in the letter under
reference (ii) and shall submit the performance to MoR
in the Proforma in compliance to clause 1.2 of
Annexure C-2 of 'Procedure for Safety Certification
and Technical Clearance of Metro systems, December
2015.
Above fastening system can also be used by
other metros as per requirement, after obtaining
clearance from MoR on submission of various salient
features of fastening system in the form of annexure
C2.
(D. K. Mishra)
Director/GS (Civil)-IV
Railway Board
Ph 011 -47845480"
"No. K-14011103/2022-MRTS-Coord
Neutral Citation Number : 2023/DHC/001381
Government of India
Ministry of Housing and Urban Affairs
(MRTS Coord Desk)
311-B, Nirman Bhawan, New Delhi,
Dated the 27th July, 2022.
To,
Managing Directors of All Metro Rail
Corporations
(As per list attached)
Subject: Approval of Re-engineered design of "Pandrol
Double Resilient Baseplate Assembly" fastening system
21166 for Delhi Metro Rail Corporation Ltd
Sir/Madam,
I am directed to refer to Ministry of Railways'
(MoR's) letter dated 15.03.2021 (copy enclosed) on the
above cited subject and to say that upon DMRC's
request, MoR has accorded approval to Re-engineered
design of two hole "Pandrol Double Resilient
Baseplate fastening system" for adoption in Ballastless
track of Metro Rail Systems subject to certain
conditions.
2. MoR, vide OM dated 19.07.2022 (copy
enclosed), has also clarified that the above fastening
system can also be used by other metros as per
requirement after obtaining clearance from MoR on
submission of various salient features of fastening
system in the form of annexure C2 of 'Procedure for
Safety Certification and Technical Clearance of Metro
Systems, December 2015'.
3. All metro rail corporations are requested to take
note of the decision of MoR in the subject matter.
Neutral Citation Number : 2023/DHC/001381
Yours faithfully,
(Rachna Kumar)
Under Secretary to the Govt of lndia
Tel: 23062935"
22. A perusal of the abovementioned letter dated 19.07.2022 shows that
the fastening system can be used by other metros as per the requirement after
obtaining clearance from Ministry of Railways on submission of various
salient features of fastening system in the form of annexure C-2 and further
clearance can be obtained only after successful performance for 2 years,
meaning thereby, the letters dated 19.07.2022 and 27.07.2022 issued by the
Ministry does not make the fastening system eligible as per the requirement
of Paragraph 6.3 (A) (iii) of the general specifications of the bid document.
23. A perusal of the material on record shows that the very same issue
which has been raised by the Petitioner in the present petition had been
raised by the Petitioner in a pre-bid query. Vide the pre-bid query, the
Petitioner had sought for a change in the tender conditions. However, the
same had been negated by the DMRC.
24. The relevant queries raised by the Petitioner and the reply by the
DMRC negating the contentions of the Petitioner read as under:-
CONTRACT: DT-05: "INSTALLATION, TESTING & COMMISSIONING OF BALLASTLESS TRACK
INCLUDING SUPPLY OF FASTENING SYSTEM, BUFFER STOP & OTHERS FOR LINE-7 EXT (MAUJPUR-
MAJLIS PARK) (CH. 0.0M TO CH. 12098.520M) OF DELHI MRTS PROJECT OF PHASE-IV".
REPLY TO PRE BID QUERIES
S. Section No. Clause No. Description of Clause Clarifications Sought/ DMRC Reply
No. Queries
2 Part-2 Employers 2. Part A Essential requirements of Reference para (v) No change in
(Section-VI) 2-1, Proposed Fastening system above, we would like to tender
ER, PS, Cl. 6.3, (iii) The proposed Fastening propose our fastening conditions.
Track System should have a Proven system Pandrol Double
Components, Track record. The fastening Resilient Baseplate
Technical system should have Assembly System
specification of satisfactory performance (PDRBA) 2 Hole
Fastening record of minimum three years Assembly 21166 as
Neutral Citation Number : 2023/DHC/001381
system in service in approved by
regular revenue operation on RDSO and by Ministry
ballastless track on any two of Railways (MoR) to
different established railway various contractors who
systems (except exclusive have submitted their
freight tracks) for a length of bids against the referred
at least 5 km in each metro tender.
having We have supplied more
speed potential of at least 80 than 20 Lakhs baseplate
kmph & design axle load 16T sets of PDRBA 13145 in
irrespective of wheel profile last 10 years into
and Indian Metros (including
rail section. approx 7 Lakh sets
(v) Any deviation/Modification supplied to DMRC for
in Proposed fastening system Phase III and MMRDA
against Para 4.6 of projects). As a
Performance continuous innovation
criteria issued by Ministry of and development
Railways under Annexure C II exercise and based on
of Procedure of safety feedbacks
certification received from Metros
& Technical clearance for (including DMRC) and
Metro Systems, December associate Track
2015 will be considerable only installation agencies
if, system regarding
with deviation/ modification is economy in plinth cost,
approved by Ministry of compliance to distance
Railways and Modified system of Derailment guard to
will have running rail as per
Proven Track record as RDSO Annexure C2
mentioned in A.(iii). In such a Dec'2015, and
case an Assembly Test will be compatibility factors for
required installation of tracks,
to be done with the fresh M/s. Pandrol
samples and same to be Re-engineered its
witnessed by DMRC existing system of
nominated Third PDRBA 13145
Party Inspecting (approved by MOR
agency/DMRC. dated 07.10.2011)
C.1 Certificate of Provenness and offered to DMRC on
of the fastening system 26.09.2020, the value
In terms of Paragraph 4.1 (ii) engineered / modified
of Performance Criteria of version PDRBA 2-Hole
Fastening System enclosed at system Type 21166
Annexure C of Particular making it more
Specification to Employer's compatible, suitable &
Requirement, the Tenderer economical. One of the
shall submit key feature
certificate/s of performance that was modified in the
from user railway fastening system was use
administration, including proof of 2x 33mm bolts on
of use of the curve track instead of
same fastening system 4x27mm bolts. Similar
encompassing the same set of arrangement had been in
components (as is being use for more than 20
offered by years in Singapore and
Neutral Citation Number : 2023/DHC/001381
the Tenderer in this Tender), to was also installed in
the effect that the fastening Riyadh Metro and
system has satisfactory Dhaka Metro. In Dhaka
performance record for Metro, DMRC as lead
minimum 3 years in service in consultant of NKDM
ballastless track in their Association (Nippon-
system(s). The KOEI-NK India-DMRC-
certificate should be MOTT UK-MOTT India
accompanied with the drawing DDC) has already
of the fastening system and its approved the usage of
components to clearly the similar system in
establish that the fastening 2019. Copy of the
system including its approval by DMRC is
components whose enclosed.
performance has been certified PDRBA 2 Hole fastening
is exactly same as the fastening system 21166 was
system including its proposed by us under
components that has been para 4.6 of Annexure
proposed by the Tenderer in C2 to DMRC vide letter
this Tender. The drawings dated 26.09.2020.
need not DMRC after being
be certified by the client. satisfied / accepted the
The certificate(s) should also same and forwarded to
contain, but not limited to, the RDSO/MOR vide their
following information letter dated 23.12.2020
(i) Details of the user railway for approval as
administration such as the per Para 4.6 of
Name of the railway Annexure C2 of RDSO
administration Dated Dec'2015. RDSO
and its contact person, vide their letter dated
address, telephone number, e- 01.03.2021 and MOR
mail id, Fax number etc; vide their letter dated
(ii) Name of the main line in 15.03.2021 has already
which the system is in use for approved the same
minimum 3 years for usage in Ballastless
Track system by Metros
(including DMRC).
We thus request DMRC
to kindly remove
requirement of
provenness as
highlighted in para
(iii) above as PDRBA 2
Hole fastening system
21166 is a re-engineered
version of PDRBA
13145 already proven in
India (including approx
7 Lakh sets supplied to
DMRC for Phase III
and MMRDA projects)
since last 10 years.
3 Part-2 3. Part 2-1, ER, C.6 In case Vendor unit not Based on the above No change in
(Section-VI) PS, Cl. approved earlier or no any highlighted portion, tender
6.3, Track supply made earlier to DMRC since fastening system conditions.
Components, then fresh approval of and its components are
Neutral Citation Number : 2023/DHC/001381
Technical Engineer will be required. In safety item hence we
specification of such a case Tenderer have to request DMRC that any
Fastening submit proposal for New manufacturing
system:- consideration of vendor unit units for CRITICAL
along with relevant details like COMPONENTS (viz.
Manufacturing & testing Clips, Pads etc.)
facilities, technical evaluation developed in India
report, Past supply records to should only be approved
any user administration, Test by DMRC once the
reports for the components, given manufacturing
Assembly test report with the unit has been approved
samples produced by proposed by the Original
Vendor unit, QA report, Designer / OEM of the
Approval of system supplier respective fastening
and others. New Vendor units supplier following the
having adequate process of "proposer-
manufacturing & Testing maker-checker" and
facilities but no Past supply receipt of Technology
record or not enough one as transfer from the
per eligibility criteria, then Overseas Designer /
such units will be considered OEM supplier /
for manufacturing & supply manufacturer, backed
only after successful Third- by their warrantee and
Party Technical evaluation guarantee of the
followed with DMRC performance in the
approval. given assembly and
track
We thus request DMRC
for necessary
clarification and
changes as requested
above please.
CONTRACT: DT-05: "INSTALLATION, TESTING & COMMISSIONING OF BALLASTLESS TRACK
INCLUDING SUPPLY OF FASTENING SYSTEM, BUFFER STOP & OTHERS FOR LINE-7 EXT (MAUJPUR-
MAJLIS PARK) (CH. 0.0M TO CH. 12098.520M) OF DELHI MRTS PROJECT OF PHASE-IV".
REPLY TO PRE BID QUERIES
S. Section No. Clause No. Description of Clause Clarifications Sought/ DMRC Reply
No. Queries
4 Part-2 Part 2-1, ER, PS, A Essential requirements of Reference para (v) Please refer
(Section-VI) Cl. 6.3, Proposed Fastening system above, we would like to clause 6.3 A(v)
Track (iii) The proposed Fastening propose our fastening of Particular
Components, System should have a Proven system Pandrol Double Specification
Technical Track record. The fastening Resilient Baseplate of Employer
specification of system should have Assembly System Requirement
Fastening satisfactory performance (PDRBA) 2 Hole of the bidding
system:- record of minimum three years Assembly 21166 as documents.
in service in approved by However,
regular revenue operation on RDSO and by Ministry same will be
ballastless track on any two of Railways (MoR) vide dealt in due
different established railway their letter dated course as per
systems (except exclusive 15.03.2021 respectively. guidelines
freight tracks) for a length of PDRBA 2 Hole fastening from MoR, if
at least 5 km in each metro system 21166 is a re- any.
Neutral Citation Number : 2023/DHC/001381
having engineered version of
speed potential of at least 80 already approved
kmph & design axle load 16T PDRBA 13145 by MOR
irrespective of wheel profile vide their letter dated
and 07.10.2011. PDRBA 2
rail section. Hole fastening system
(v) Any deviation/Modification 21166 was proposed by
in Proposed fastening system us under para 4.6 of
against Para 4.6 of Annexure C2 to DMRC
Performance vide letter dated
criteria issued by Ministry of 26.09.2020 which states
Railways under Annexure C II "Any change in
of Procedure of safety component subsequent
certification to the approval of the
& Technical clearance for fastening system by MoR
Metro Systems, December shall be permitted only
2015 will be considerable only for specific requirement
if, system of the metro.
with deviation / modification is MoR approval of such
approved by Ministry of changes shall be
Railways and Modified system processed by metro with
will specific
have Proven Track record as recommendations
mentioned in A.(iii). In such a enclosing test report of
case an Assembly Test will be the component / whole
required to be done with the assembly with
fresh samples and same to be detailed justification."
witnessed by DMRC DMRC after being
nominated satisfied / accepted the
Third Party Inspecting same and forwarded to
agency/DMRC. RDSO/MOR vide their
letter dated 23.12.2020
for approval as per Para
4.6 of Annexure C2 of
RDSO Dated
Dec'2015. RDSO vide
their letter dated
01.03.2021 and MOR
vide their letter dated
15.03.2021 has already
approved the same for
usage in Ballastless
Track system by Metros
(including DMRC).
We thus want to request
DMRC that provenness
of fastening system
PDRBA 13145
under MOR approval
07.10.2011 should be
acceptable and
considered for the
modified
system PDRBA 2 Hole
fastening system 21166
as approved by MOR
Neutral Citation Number : 2023/DHC/001381
vide letter dated
15.03.2021, which is a
re-engineered system of
the mother system
PDRBA 13145.
25. A perusal of the material on record shows that the Petitioner had
raised a pre-bid query, before opening of the technical bid, requesting
Respondent No.1 to remove the requirement of "performance record of three
years in service" i.e., provenness as highlighted in Clause 6.3 A (iii) and 6.3
C.1 of Employer‟s Requirements-Particular Specifications. The same was
duly replied to by the Respondent No. 1 stating that no change in tender
conditions would be made for the Project. Even then, the Petitioner
proceeded with PDRBA 21166 as the chosen fastening system for bidding
for the Project. Subsequently, there were also post bid queries raised by
Respondent No.1 intimating the Petitioner that PDRBA 21166 is found to be
technically non-responsive and thus, not acceptable. It is stated in the same
communication that since the Petitioner had submitted the credentials for
PDRBA 13145, and that the same has been approved by the Ministry of
Railways, the Petitioner can submit a confirmation with regards to the use of
the same in the Project. However, there was no communication received by
Respondent No.1 giving a confirmation to this end thereafter. In response,
the Petitioner only continued to dispute the fact that PDRBA 21166 is in fact
technically responsive and the finding arrived upon by Respondent No.1 is
erroneous. Reliance was placed by it on various communications exchanged
with stakeholders to buttress the same.
26. A perusal of the above shows that the Petitioner cannot, subsequent to
having participated in the entire tender process and disagreeing with the
Neutral Citation Number : 2023/DHC/001381
tender issuing authority, approach a Court of equity to quash the impugned
communications whereby the bid of the Petitioner was rejected.
27. It is well settled that after participating in a tender, it is not open to a
participant to turn around and challenge the very same clause by filing a writ
petition.
28. The Petitioner had chosen not to challenge the condition before
participating in the tender. The Petitioner did not approach this Court
challenging the tender conditions but chose to participate in the tender. After
participating in the tender, the Petitioner cannot be permitted to turn around
and challenge the very same clauses. A Division Bench of this Court by
Judgment dated 05.10.2016 passed in Monnet Ispat & Energy Ltd v. Union
of India & Anr., W.P.(C) 1501/2015 has observed as under:-
"36. After having heard the learned counsel for the
parties and examining the rival contentions on this
issue, we are of the view that once a prospective
bidder participates in the tender process without any
demur, protest or reservation, he cannot be allowed to
challenge the very same tender process, at a later
stage in which he has lost out. This is a well settled
principle. When the petitioner filed the earlier writ
petition [WP(C) 1672/2015], it did not raise any
ground whatsoever with regard to the order dated
18.12.2014 or the tender documents. All the points
sought to be raised in the present petition appeared to
be afterthoughts and cannot be entertained by this
Court. Consequently, the petitioner is not entitled to
any relief in the present petition."
(emphasis supplied)
29. Similarly another Bench of this Court in R.K. Jain & Sons Hospitality
Pvt. Through Its Director v. Union of India &Anr., W.P.(C) 3712/2020, has
observed as under:-
Neutral Citation Number : 2023/DHC/001381
"15. The petitioner has participated in the tender
process with its eyes wide open. After participating in
the tender process, it is not open to the petitioner to
turn around and challenge the tender conditions. In
this context, a Division Bench of this Court in Siemens
Aktiengesellschaft and Siemens Ltd. Vs. DRMC Ltd.,
reported as 2013 SCC OnLine Delhi 1982, had
observed thus:-
on 13.07.2012 the Petitioner had raised several
queries on GEC related issues which were
responded to by the Respondent No. 1, however the
Petitioner never communicated or expressed any
doubts or apprehensions. The Petitioner had thus
accepted and adhered to the tender conditions
while submitting its bids. Having accepted the
tender conditions and the Guaranteed Energy
Consumption based evaluation by submitting its
bid, the Petitioner is now stopped from challenging
the tender conditions or the manner of financial
bids evaluation."
16. The captioned judgment of the Delhi High Court
was upheld by the Supreme Court in Siemens
Aktiengesellschaft and Siemens Ltd. Vs. DRMC Ltd.
reported as (2014) 11 SCC 288. In Meerut
Development Authority vs. Assn. of Management
Studies reported as (2009) 6 SCC 171, the Supreme
Court held as below:-
"27. The bidders participating in the tender
process have no other right except the right to
equality and fair treatment in the matter of
evaluation of competitive bids offered by interested
persons in response to notice inviting tenders in a
transparent manner and free from hidden agenda.
One cannot challenge the terms and conditions of
the tender except on the abovestated ground, the
reason being the terms of the invitation to tender
are in the realm of the contract. No bidder is
Neutral Citation Number : 2023/DHC/001381
entitled as a matter of right to insist the authority
inviting tenders to enter into further negotiations
unless the terms and conditions of notice so
provided for such negotiations."
17. From a perusal of the above, the principle which
emerges is that after having participated in the tender
process, a bidder cannot turn around and challenge
the tender conditions. The bidder has no other right
except the right to equality and fair treatment in the
matter of evaluation of competitive bids offered by
interested parties in response to the NIT in a
transparent manner and free from any hidden agenda.
18. In view of the above discussion, we are unable to
persuade ourselves to interfere in the tender
conditions, more so after the petitioner has
participated in the process. Even on merits, we do not
find that the conditions imposed in the tender are
arbitrary, discriminatory, irrational or manipulated in
order to eliminate fair competition, as has been
alleged in the petition. 19. Consequently, the petition is
dismissed as meritless alongwith the pending
application."
(emphasis supplied)
30. The reliance of the Petitioner on the Judgment of this Court in Patil
Vossloh (supra) is also not warranted. The said Judgment was not passed in
a petition in which a tender or a result of the tender was under challenge. In
the facts of that case, the Petitioner therein had challenged the decision of
the government to relax the condition which mandated satisfactory record of
five years for being eligibility criteria to supply fastening equipment to
metro rail for laying ballastless tracks. The Court was not considering as to
whether such a condition could be imposed as a criteria of eligibility to
participate in the tender process. The observations made by the Court in the
Neutral Citation Number : 2023/DHC/001381
said Judgment cannot be used while deciding as to whether conditions of
provenness of three years as highlighted in Clause 6.3 (A) (iii) and 6.3 C.1
of Employer‟s Requirements/Particular Specifications is justified or not.
31. It is well settled that the tender floating authority is the best judge of
the requirements for the said project. The fact that new mechanism/system
which is given by the Petitioner has been approved by the Ministry of
Railways on the request of the DMRC alone cannot lead to an inference that
DMRC will adopt that new system in their new project without it being
tested. It is upto the tenderer to accept as to when to use the new system in
any metro project/ any other project. It is upto the tenderer to decide as to in
which project they desire to use any new/ re-engineered version of
components/ designs/ structures etc. The letter of the Govt. of India that this
new/ re-engineered fastening system can be used by metros as per
requirement does not make it mandatory on the tenderer to adopt the system.
The same also holds true, especially in light of the high responsibility
bestowed upon the tender issuing authority herein, to ensure the safety of
citizens utilising the metro lines for commuting. The aforesaid finding of
this Court moves on to supplement the settled position of law that the tender
issuing authority is in fact the best person to interpret its own document and
lay down technical requirements at its own discretion. This has been held by
the Hon‟ble Supreme Court and this Court in a plethora of Judgements.
32. In Afcons Infrastructre Ltd. v. Nagpur Metro Rail Corpn. Ltd.,(2016)
16 SCC 818, the Apex Court has held 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
Neutral Citation Number : 2023/DHC/001381
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 DwarkadasMarfatia and Sons v. Port of Bombay
[DwarkadasMarfatia 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 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
Neutral Citation Number : 2023/DHC/001381
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."
(emphasis supplied)
33. In Silippi Constructions Contractors v. Union of India &Anr., (2020)
16 SCC 489, the Apex Court has observed as under:-
"19. This Court being the guardian of fundamental
rights is duty-bound to interfere when there is
arbitrariness, irrationality, mala fides and bias.
However, this Court in all the aforesaid decisions has
cautioned time and again that courts should exercise a
lot of restraint while exercising their powers of judicial
review in contractual or commercial matters. This
Court is normally loathe to interfere in contractual
matters unless a clear-cut case of arbitrariness or mala
fides or bias or irrationality is made out. One must
remember that today many public sector undertakings
compete with the private industry. The contracts
entered into between private parties are not subject to
scrutiny under writ jurisdiction. No doubt, the bodies
which are State within the meaning of Article 12 of the
Constitution are bound to act fairly and are amenable
to the writ jurisdiction of superior courts but this
discretionary power must be exercised with a great
deal of restraint and caution. The courts must realise
their limitations and the havoc which needless
interference in commercial matters can cause. In
contracts involving technical issues the courts should
be even more reluctant because most of us in Judges'
robes do not have the necessary expertise to
adjudicate upon technical issues beyond our domain.
As laid down in the judgments cited above the courts
should not use a magnifying glass while scanning the
tenders and make every small mistake appear like a
big blunder. In fact, the courts must give "fair play in
the joints" to the government and public sector
Neutral Citation Number : 2023/DHC/001381
undertakings in matters of contract. Courts must also
not interfere where such interference will cause
unnecessary loss to the public exchequer.
20. The essence of the law laid down in the judgments
referred to above is the exercise of restraint and
caution; the need for overwhelming public interest to
justify judicial intervention in matters of contract
involving the State instrumentalities; the courts
should give way to the opinion of the experts unless
the decision is totally arbitrary or unreasonable; the
court does not sit like a court of appeal over the
appropriate authority; the court must realise that the
authority floating the tender is the best judge of its
requirements and, therefore, the court's interference
should be minimal. The authority which floats the
contract or tender, and has authored the tender
documents is the best judge as to how the documents
have to be interpreted. If two interpretations are
possible then the interpretation of the author must be
accepted. The courts will only interfere to prevent
arbitrariness, irrationality, bias, mala fides or
perversity. With this approach in mind we shall deal
with the present case." (emphasis supplied)
34. It is pertinent to mention that the contention of the Petitioner that the
Judgment of a Coordinate Bench of this Court in Patil Vossloh (supra)
would apply to the facts of this case and that the clauses in the tender
insisting on a three year provenness is contrary to the Judgment of the
Coordinate Bench in Patil Vossloh (supra) cannot be accepted.
35. It is up to the tenderer to lay down the tender conditions and it is for
the DMRC to decide as to which system would be safe and more particularly
for the metro system wherein the lives of people are at stake. The decision of
Neutral Citation Number : 2023/DHC/001381
the tenderer to fix a provenness criteria cannot said to be unreasonable or
unfair and as rightly submitted by the learned Counsel for Respondent No.1,
as the same is borne out of the technical and safety considerations and has
been evolved by the practical experience of the officials of DMRC.
36. The contention of the Petitioner that the new system is only a re-
engineered version of the metro system, i.e., PDRBA 13145, and, therefore,
the insistence on the requirement of three year provenness is arbitrary,
cannot be accepted and the decision of the tenderer to insist on a three year
provenness cannot be found fault with, especially, when it touches with the
safety of passengers.
37. In view of the above, the petition is dismissed, along with pending
application(s), if any.
SATISH CHANDRA SHARMA, C.J.
SUBRAMONIUM PRASAD, J
FEBRUARY 24, 2023
hsk/DA
