Gauhati High Court
WA/430/2024 on 17 September, 2025
GAHC010273862024
2025:GAU-AS:12752-DB
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEAL No.430/2024
1. JARPL-JPW-DMC, a Consortium of (1) M/s Jai
Ambey Roadlines Private Limited, a Company
registered under the Companies Act, 1956,
having its registered address at I-37, Anupam
Nagar, Shankar Nagar, Raipur, Chhatishgarh,
PIN - 492007.
2. JPW Infratech Private Limited, a Company
registered under the Companies Act, 1956,
having its registered address at 146, S.P.
Mukherjee Road, 3rd Floor, Flat 9, Kolkata, West
Bengal, PIN - 700026.
3. Dev Mining Company, a Partnership Firm,
having its registered address at A-59, Shailendra
Nagar, Raipur, Chhatishgarh, PIN - 492001,
having its Head Office at I-37, Anupam Nagar,
Shankar Nagar, Raipur, Chhatishgarh, PIN -
492007, represented through its Lead Partner,
M/s JPW Infratech Private Limited, having its
registered address at 146, S.P. Mukherjee Road,
3rd Floor, Flat 9, Kolkata, West Bengal, PIN -
700026, represented by its Director/authorized
representative, namely, Sri Jai Prakash Wassan,
Son of Jagdish Lal Wassan, resident of A-1
Shyama, 14, T.P. Nagar, Korba, Chattishgarh,
PIN - 495677.
........Appellants
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-Versus-
1. The Union of India, represented by the
Secretary, Ministry of Coal, having its Office at
Shastri Bhawan, Dr. Rajendra Prasad Road, New
Delhi, India - 110066.
2. The Secretary, Ministry of Finance
Department of Expenditure, having its Office at
Room No.129A, North Block, New Delhi, India -
110001.
3. The Coal India Limited, represented by its
Chairman-cum-Managing Director, having its
Office at Coal Bhawan, Premises No.04 MAR,
Plot No.AF-III, Action Area-1A, New Town,
Rajarhat, Kolkata, PIN - 700156.
4. The General Manager, Contract Management
Cell (CMC), Coal India Limited, having its Office
at Coal Bhawan, Premises No.04 MAR, Plot
No.AF-III, Action Area-1A, New Town, Rajarhat,
Kolkata, PIN - 700156.
5. The North Eastern Coal Fields, represented by
its General Manager, having its Office at
Margherita, Tinsukia, Assam, PIN - 786181.
6. Mahalaxmi Infra Contract Private Limited,
represented by its Director, having its Office at
813-825, Binori B Square 3, Sindhu Bhawan
Road, 54, Bodakdev, Ahmedabad, Gujarat, PIN
- 380054.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Appellant(s) : Mr. D. Saikia, Senior Advocate assisted by Mr.
S. Deka, Advocate.
For the Respondent(s) : Mr. H. Gupta, Central Government Counsel for
respondent Nos.1 & 2.
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: Mr. I. Chowdhury, Senior Advocate assisted by
Mr. T. Das, Advocate for Respondent Nos.3 & 4.
: Mr. M.Z. Ahmed, Senior Advocate assisted by
Mr. A.M. Dutta, Advocate for respondent No.5.
: Mr. K.N. Chouhdury, Senior Advocate assisted
by Mr. N. Gautam, Advocate for respondent
No.6.
Date of Hearing : 05.08.2025.
Date of Judgment : 17.09.2025.
JUDGMENT & ORDER (CAV)
(Ashutosh Kumar, CJ)
We have heard Mr. D. Saikia, learned Senior Advocate,
assisted by Mr. S. Deka, learned Advocate for the appellants; Mr. H.
Gupta, learned Central Government Counsel for respondent Nos.1 &
2; Mr. I. Chowdhury, learned Senior Advocate, assisted by Mr. T.
Das, learned Advocate for respondent Nos.3 & 4; Mr. M.Z. Ahmed,
learned Senior Advocate, assisted by Mr. A.M. Dutta, learned
Advocate for respondent No.5 and Mr. K.N. Choudhury, learned
Senior Advocate, assisted by Mr. N. Gautam, learned Advocate for
respondent No.6.
2. This intra-Court appeal is against the judgment and order
dated 12.12.2024 passed by a learned Single Judge, whereby, the
writ petition, bearing WP(C) No.4510/2024, preferred by the
appellant/Consortium, challenging the communications dated
22.08.2024 and 28.08.2024, informing the appellant that its
technical bid has been rejected and the decision to open and finalize
the bid in favour of respondent No.6, was dismissed. The learned
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Single Judge declined to interfere with the decision of the Tender
Evaluation Committee, which had rejected the technical bid of the
appellant for non-compliance with the essential conditions of tender.
3. The Coal India Limited (respondent No.3) had issued
Notice Inviting Tender (hereinafter to be referred as the "NIT") on
05.07.2024 for "Hiring of HEMM for removal of overburden (936.72
Lakh CuM) and Extraction and Transportation of coal (53.00 Lakh
Tes) from Tirap OCP of Tirap Colliery at NEC, Margherita, for a
period of 10 years (1 year for development and 9 years for
production)". The estimated cost of the work tender was
Rs.1561,88.69 Lakhs and the last date of Bid submission was
05.08.2024. It was specifically noted in the NIT that in case of Joint
Venture/Consortium, the registration of the bidder should be in the
name of the lead member. However, the documents against
"eligibility criteria" were to be in the name of the Joint
Venture/Consortium.
4. It would be apposite to first refer to the various Clauses in
the NIT for appropriate appreciation of the contentions raised on
behalf of the parties.
5. Clause 2.2 of the NIT specified that in case of Joint
Venture, each entity will be jointly and severally responsible for
completing the task as per the contract; the Joint Venture
Agreement should legally bind all members jointly and severally and
the Joint Venture Agreement may specify the share of each
individual member, which may be required for the purposes of
apportioning the value of the contract for subsequent submission in
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other bids. The Joint Venture Agreement was to be submitted in the
format prescribed in the NIT at Annexure-II.
6. Clause 3 of the NIT further required the Bidder(s) to
submit duly filled up Bid Submission Confirmation (BSC) sheet. The
submitted documents would be verified against the data furnished in
the BSC sheet.
Since the NIT was in furtherance of Make in India Policy of
the country, special provision was made for categorization and
preference for local suppliers: local supplier having been defined as
goods/services/works having local content equal to or more than
50%. The local content also has been defined in the NIT to mean
the amount of value added in India. For compliance with the afore-
noted Clause, the Bidder(s) were required to submit the qualifying
documents.
7. It was further provided in the said Clause that if the
estimated value is more than Rs.10 Crores, the Bidder(s) would
submit a certificate in the format prescribed in the NIT. The format
was very specific and it included the furnishing of details pertaining
to locations at which the local value addition was made.
8. Clause 15 of the NIT expressly laid down that the Bidder(s)
will have to accept the unconditional terms and conditions in the
NIT.
9. Clause 19 of the NIT provided for the method of evaluation
of tenders. The Tender Committee was entrusted to undertake the
entire decision making process and to make the recommendation.
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In case, the Tender Committee found that there is some deficiency
in the up-loaded documents corresponding to the information
furnished in the Bid Submission Confirmation (BSC) sheet or in case
the corresponding documents have not been up-loaded by the
Bidder(s), then the same shall be specified online by the Evaluator,
clearly indicating the omissions/ shortcomings in the up-loaded
documents and allowing clear 7(seven) days for online re-
submission by the Bidder(s). Additionally, information was also
required to be sent by system generated e-mail and SMS, but it
would have been be the Bidder's responsibility to check the updated
status/information on GeM Portal regularly after opening of the bid.
It was further specified that no separate communication would be
required in that regard and non-receipt of e-mail and SMS will not
be accepted as a reason of non-submission of documents within the
prescribed time. The Bidder(s) would be required to upload the
scanned copy of all those specified documents in support of the
information/declarations furnished by them in Bid Submission
Confirmation (BSC) sheet within the specified period of 7(seven)
days. No further clarification would be sought from the Bidder(s).
10. What is important here to note is that Clause 19 of the NIT
clearly provided that the shortfall information/ documents will be
sought only in case of historical documents, which pre-existed at the
time of the tender opening and which have not undergone change
since then. Those documents would be called only on the basis of
the recommendations of the Tender Evaluation Committee.
11. So far as the submission of documents with respect to
qualification criteria is concerned, the NIT prescribed that after
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submission of the tender, only related shortfall documents would be
asked for and considered. An example was given, namely, if the
bidder had submitted a work order document relating to a particular
contract without its completion/performance certificate, the
certificate could be asked for and considered. However, no work
order for a new contract would be asked for so as to qualify the
bidder.
12. It was the case of the appellant/Consortium before the
learned Single Judge that for the specific purposes of participating in
the afore-noted NIT, the appellant/Consortium was constituted with
(i) M/s Jai Ambey Roadlines Private Limited; (ii) M/s JPW Infratech
Private Limited and (iii) M/s Dev Mining Company, a Partnership
Firm, by executing a Consortium Agreement dated 02.08.2024. This
Consortium had participated in the NIT through GeM Portal.
13. The Tender Evaluation Committee, through the GeM Portal,
sought 3(three) clarifications by way of request from the appellant,
viz.
(a) Request-1 - to submit the certificate in the name of
the Consortium issued by the practicing Cost Accountant
or practicing Chartered Accountant regarding local
content as per the additional terms and conditions in the
bid documents;
(b) Request-2 - to submit the clearly readable copy of
Partnership Deed of M/s Dev Mining Company; and
(c) Request-3 - to submit additional document No. 1 as
per attachment.
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14. Against the aforesaid Request-3, it was clarified that due to
text limit by the GeM Portal, the query was attached. However, the
appellant contends that no attachment was uploaded and precisely
for that reason, no document was furnished by the appellant.
However, against the said request, the appellant re-submitted the
working capital certificate for the reason that without uploading any
document against all the requests, the GeM Portal would not have
proceeded to the next step.
15. With respect to the two requests, referred to above, the
appellant had submitted a fresh certificate in the name of the
Consortium dated 17.08.2024 issued by the practicing Chartered
Accountant on the basis of the historical data of all the partners of
the Consortium and a clear readable copy of the Partnership Deed
of M/s Dev Mining Company.
16. The technical bids were opened on 22.08.2024 and out of
12 Bidders, 11 including the appellant were disqualified, leaving only
respondent No.6 in the fray.
17. The bid of the appellant was ostensibly rejected on two
grounds, namely, (i) that the certificate dated 17.08.2024 produced
by the appellant was post-bid document, whereas the additional
terms and conditions in the NIT expressly permitted only "historical
documents" existing as on the date of bid submission to be
furnished in respect to queries/clarifications. The certificate was also
not in the name of Joint Venture/Consortium as required; and (ii)
the agreement submitted by the Joint Venture/ appellant was not in
the prescribed format under the additional terms and conditions and
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was capable of being construed as limiting each partners eligibility
to its own share, instead of providing for joint and several liability,
which was an express requirement of the NIT.
18. Against the afore-noted decision dated 22.08.2024 of the
Tender Evaluation Committee, the appellant had protested such
disqualification by submitting a representation dated 23.08.2024,
which too was rejected on the same grounds by communication
dated 28.08.2024.
19. The decision of the Tender Committee on the
representation, treating it as an appeal, is as follows:
"As per clause no.3.1(r), Local Content certificate was required
from the bidder, i.e., M/s JARPL-JPW-DMC. The initial
certificates submitted by the bidder were in the name of 2
individual partners of Consortium and against technical
clarification, the certificate submitted in the name of bidder
bears the date after the bid submission end date, which is not a
historical document.
Conclusion: Bidder failed to submit the requisite historical
document against the technical clarification/shortfall document
as per clause no.3.1 (r) of ATC of Bid Document and submitted
a document bearing a date after the bid submission end date.
7. As per clause no.3.1 (h), if the 'bidder is JV/Consortium,
bidder to submit Scanned copy of JV/Consortium Agreement
containing name of partners and lead partner, Power of
Attorney to the lead partner and share of each partner etc'
along with other document regarding Legal Status of Bidder.
The difference in the submitted consortium Agreement from
Annexure II of ATC of Bid Document as follows:
Heading Consortium Agreement Annexure-II of
submitted by bidder ATC of Bid
Document
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Joint and Several Bidder in the Bidder in the
Liability agreement stated that agreement stated
'All partner of that 'All partner
Consortium shall be of Consortium
liable jointly and shall be liable
severally to the as jointly and
mention severally during
proportionate clause the Pre-
no-04 during the pre- qualification and
qualification and Bidding process;
Bidding process; and and in the event
in the event the the contract is
contract is awarded, awarded, during
during execution of the execution of the
Contract, in Contract, in
accordance with accordance with
Contract terms'. Contract terms'
From the above table, it is evident that the submitted
consortium agreement is not as per the format provided in the
Annexure-II of ATC of Bid Document.
A clarification was sought regarding 'whether the statement
written at sl. no.7 for liable jointly and severally is inline of the
statement written at sl. 4 and sl. no.4.3 of 6 of consortium
agreement submitted by bidder or liable for the proportionate
share, i.e., M/s JPW Infratech Private Limited (50%), M/s Jai
Ambey Roadlines Pvt. Ltd. (30%) and M/s Dev Mining Company
(20%)'.
In response bidder submitted a copy of working capital
certificate.
Conclusion: Bidder did not submit the clarification against the
query sought and submitted a copy of working capital. The
submitted document regarding Consortium Agreement is not in
line with the format provided at Annexure II of ATC of Bid
Document. Therefore, the bidder does not fulfill the eligibility
criteria as per requirement of Bid Document.
In view of above, TC stands with its earlier recommendation
that Bidder M/s JARPL-JPW-DMC does not fulfill eligibility
criteria as per requirement of Bid Document and their appeal
needs to be rejected on GeM Portal mentioning the following
remarks:
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a) The submitted Consortium Agreement is not inline of
Annexure-II of ATC of Bid Document.
b) The bidder i.e., M/s JARPL-JPW-DMC, a consortium did
not submit required document to satisfy the clause
no.3.1(r) of ATC of Bid Document.
c) Documents submitted by the bidder through challenge
rejection window shall not be considered other than the
application uploaded as 'appeal'."
20. Aggrieved by the afore-noted decision of the Tender
Evaluation Committee and awarding the contract in favour of
respondent No.6, the appellant preferred WP(C) No.4510/2024 on
various grounds.
21. It was contended that the old local content certificates had
been issued by the Chartered Accountant on the basis of the data
provided by the two partners of the Consortium, namely, M/s Jai
Ambey Roadlines Private Limited and M/s JPW Infratech Private
Limited, whereby, it was certified that the percentage of local
content in the offered product/service is 100% and meets the local
content requirement for "Class-I local supplier". The re-submitted
certificate for local content dated 17.08.2024, which was held as
post-bid supplementation, only recorded the consolidation of the
names of the firms, namely, M/s Jai Ambey Roadlines Private
Limited and M/s JPW Infratech Private Limited and M/s Dev Mining
Company, constituting the Consortium. This certificate was issued
by the Chartered Accountant on the basis of the historical data of
the partners of the Consortium, which existed prior to the
participation of the Consortium in the NIT. The Consortium had
been constituted solely for the purpose of participating in the instant
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NIT. The re-submitted certificate for local content dated 17.08.2024
clearly demonstrated that nothing new had been appended nor any
new fact had been incorporated. In this event, the certificate dated
17.08.2024 ought not to have been treated as a subsequent
document or non-historical document.
22. It was also submitted before the learned Single Judge that
there was no requirement for submitting the certificate in the name
of the Consortium as per the NIT, but even then, the appellant had
submitted the same because it was so demanded by the Tender
Evaluation Committee.
23. It was argued before the learned Single Judge that the
Consortium is only a Joint Venture, which is a legal entity, in the
nature of the partnership of the constituent companies and,
therefore, the credentials and experience of each of the partners of
the partnership gets consolidated and merged with the Joint
Venture. The re-submitted certificate of local content issued by the
Chartered Accountant in the name of the Consortium is solely based
on the credentials and experience of the partners of the
appellant/Consortium. In fact, it was argued that such clarification
by way of request by the Tender Evaluation Committee was not
required as the bid of the appellant could have been evaluated only
on the basis of the previous certificates of the local content.
24. The second ground of rejection of the technical bid of the
appellant was challenged on the premise that a few addition of
words in the format provided in the NIT was only in the nature of
minor deviation, which was curable and which did not affect the
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eligibility of the appellant. The submission of particulars in a
particular format is only a procedural aspect and a minor deviation
in that, ought not to invalidate the offer. The mistakes in the clause
numbers/paragraph numbers were because of inadvertence. The
7(seven) extra words inserted in the Consortium Agreement did not
limit the nature and extent of joint and several liability of the
partners.
25. Strict insistence on the terms of the NIT is only for the
essential conditions of a tender and not for collateral conditions. It is
always open to the Tender Floating Authority, either to seek
necessary amendments from the Bidder(s) or to waive off such
conditions.
26. It was also argued that since only one bidder remained in
the fray, the only option available to the respondents was to
proceed for re-tendering.
However, in the Contract Management Manual-2024, which
is GeM Compatible, it has been clarified that it would not be
necessary to go for re-tender in cases of single bid, taking a 'safe'
course of action. Re-bidding has costs: firstly, the actual costs of re-
tendering; secondly, delay in execution of a work with consequent
delay in the attainment of the purpose for which the procurement
has been done; and thirdly, the possibility that the re-bid may result
in a higher bid.
The Manual further prescribed that lack of competition
shall not be determined solely on the basis of the number of
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bidders. Even when only one bid is submitted, the process should be
considered valid, provided the following conditions are satisfied:-
(i) the procurement was satisfactorily advertised and sufficient
time was given for submission of bids;
(ii) the qualification criteria were not unduly restrictive; and
(iii) prices are reasonable in comparison to market values.
27. The learned Single Judge, upon examining the matter,
upheld the decision of the Tender Evaluation Committee, holding
that the appellant/Consortium did not submit the local content
(Make in India) certificate. Only two out of three partners of the
Consortium had submitted their local content (Make in India)
certificates in their individual capacity, whereas, Clause 2.1 of the
Additional Terms and Conditions provided that the invitation for bid
is open for all Bidders, which includes a Joint Venture/ Consortium.
The learned Single also found that the "Notes" appended to Clause
3.3 of the Additional Terms and Conditions required the appellant to
submit the local content certificate in the name of the Joint Venture/
Consortium and not of two of the partners of the Consortium. Thus,
the certificate dated 17.08.2024 was not historical and, therefore,
not acceptable.
28. The Consortium Agreement submitted by the appellant, it
was found, did not use the exact words as per the format provided,
making it capable of being misunderstood with respect to the aspect
of joint and several liability.
It was held by the learned Single Judge that the tender
conditions are binding and have to be complied with strictly; local
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content certificates and Consortium Agreement are the essential
requirements; judicial review in tender matters is confined only to
arbitrariness, mala fides or perversity, none of which could be
demonstrated and that the lower price of the appellant's bid cannot
override the non-compliance with essential conditions.
29. Mr. D. Saikia, learned Senior Advocate for the appellant
has submitted that a Joint Venture is akin to partnership and,
hence, certificates in the name of partners should suffice. He has
referred to the judgments of Supreme Court in New Horizons
Limited & Anr. -Vs- Union of India & Ors. :: (1995) 1 SCC 478
and Ganpati RV-Talleres Alegria Track Private Limited -Vs-
Union of India & Anr. :: (2009) 1 SCC 589 in support of his
contentions.
30. The other strand of argument of Mr. Saikia is that joint and
several liability arises only if the Consortium is awarded the
contract. Any ambiguity in the agreement should not have been
treated as fatal. Some conditions are collateral and deviations are
condonable. [Refer to - CRRC Corporation Limited -Vs- Metro
Link Express for Gandhinagar and Ahmedabad (Mega)
Company Limited :: (2017) 8 SCC 282].
31. It was also argued that the price difference of the bid of
the appellant and of respondent No.6 is 112 Crores, which ought to
have been considered in the larger public interest.
32. On the contrary, Mr. I. Chowdhury, learned Senior
Advocate for respondent Nos.3 & 4 and Mr. K.N. Chouhdury, learned
Senior Advocate for the respondent No.6 have submitted that a
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Tender Committee is bound by the declared norms and it could not
have accepted post-bid documents. The price of the bid is
irrelevant, unless technical eligibility is first satisfied. It was also
argued that everything depended upon the decision of the Tender
Committee, yet, it was not made a party before the writ-Court.
33. After having heard the learned counsel for the parties, the
following issues arise for determination:
(i) Whether the rejection of the appellant's bid on the
ground of non-compliance with tender conditions was
arbitrary, unreasonable or mala fide?
(ii) Whether the local content certificate dated 17.08.2024
could be treated as valid compliance?
(iii) Whether the Consortium Agreement satisfied the
requirement of joint and several liability? and
(iv) Whether judicial review is warranted in view of the
price advantage claimed by the appellants?
34. While approaching the issues, referred to above, we are
mindful of two constraints; namely, that the Courts are not
custodians of commercial wisdom and the role of judicial review is
confined to ensuring that the process is free of arbitrariness and
mala fides. The second is that conditions of eligibility are the
"rules of the game", which cannot be relaxed after the play has
begun. On the local content certificates, the language of Clause 19
of the NIT could not be clearer; only pre-existing historical
documents could be furnished to cure the shortfall. The certificate
of 17.08.2024 was undeniably subsequent. More importantly,
Clause 3 of the NIT insisted on certification in the name of the
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Bidder - the Joint Venture itself - not in the name of an individual
partner. The defect here was not one of form, but of substance.
35. In New Horizons Limited (supra), a Joint Venture was
disqualified from the tender as it did not possess the requisite
experience in its own name. The Supreme Court held that the
experience of the constituent partners could be counted as the
experience of the Joint Venture. When a Joint Venture is formed,
the experience of the constituent companies has to be considered
as the experience of the Joint Venture. The Joint Venture is not a
legal entity dehors from its members. The appellants have relied
on this to argue that the certificate in the name of two partners
would have sufficed and no clarification by way of a request
should have been asked for.
36. However, in New Horizons Limited (supra), the
condition of tender itself permitted reliance on partner's
experience. In the case at hand, the Additional Terms and
Conditions of the NIT expressly required the certificate in the
name of the Bidder(s)/Consortium. The ratio in New Horizons
Limited (supra), therefore, does not advance the appellant's case.
37. On the Consortium Agreement, the NIT required an
unequivocal undertaking of joint and several liability. The
documents supplied were ambiguous; it could be construed as
apportioning liability amongst partners rather than fixing it jointly
and severally. In commercial projects of such magnitude, certainty
the issue of liability is not a matter of detail, but of essence.
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38. In W.B. State Electricity Board -Vs- Patel
Engineering Company Limited & Ors. :: (2001) 2 SCC 451,
where the tender for hydro-electric projects was in question, a
bidder's tender was rejected for non-fulfillment of certain
conditions. The Court explained how to distinguish essential from
collateral conditions. Whether a condition is essential or collateral
can be determined by reference to the consequences of non-
compliance. If non-fulfillment of the condition would render the
bid itself unacceptable, it is essential. If it is merely ancillary, it is
collateral.
39. We are thus of the considered view that if in the Bidder's
Consortium Agreement, there is an ambiguity with respect to
liability which was an essential defect and not a collateral one, the
decision of the Tender Evaluation Committee cannot be faulted
with.
40. On the question of price, the submission that a saving of
Rs.112 Crores ought not to have been ignored is attractive at the
first blush, but cannot survive closer scrutiny.
41. In Raunaq International Limited -Vs- I.V.R.
Construction Limited & Ors. :: (1999) 1 SCC 492, the
Supreme Court had the occasion to dispose off a case of
paramount importance of Government contract. It was observed
that when rational and non-discriminatory norms have been laid
down for granting of tenders, a departure from such norms can
only be made on valid principles.
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42. In arriving at a commercial decision, considerations
which are of paramount importance are the commercial decisions
of which price is also an important component. However, there are
other considerations as well, namely, whether the goods and
services offered are of requisite specifications; whether the person
tendering has the ability to deliver the goods and services as per
the specifications, etc. However, the price cannot be the sole
criteria. Public interest lies as much in ensuring integrity of process
as in securing economy. A lower price secured by a defective bid
is no saving at all; it would undermine the confidence in the
system. [Also refer to Afcons Infrastructure Limited -Vs-
Nagpur Metro Rail Corporation Limited & Anr. :: (2016) 16
SCC 818].
43. In CRRC Corporation Limited -Vs- Metro Link
Express for Gandhinagar and Ahmedabad (Mega) Company
Limited :: (2017) 8 SCC 282], a Chinese Company had
challenged the disqualification in a Metro-Rail tender. The
Supreme Court had observed that the law is settled that minor
technical deviations, which do not go to the root of the eligibility,
should not be treated a fatal. However, if the tender documents
specifically mandate a condition as essential, the same cannot be
waived.
44. Similarly in M/s N.G. Projects Limited -Vs- M/s Vinod
Kumar Jain & Ors. :: (2022) 6 SCC 127, where the High Court
had interfered with a road construction tender, the Supreme Court
had reversed the finding with a stern reminder that the award of a
tender is not to be interfered with lightly. The Courts should not
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interfere in the tender process; unless substantial public interest is
demonstrated or the decision making process is found to be mala
fide or intended to favour someone.
45. The precedents read together chart a clear path.
Essential conditions cannot be compromised [R.D. Shetty -Vs-
International Airport Authority of India :: (1979) 3 SCC
489; Patel Engineering (supra)]. Price alone is irrelevant
[Raunaq International Limited (supra) and Afcons
Infrastructure Limited (supra)]. The Courts must give
deference to commercial wisdom; unless mala fides are writ large
[M/s N.G. Projects Limited (supra)].
46. The appellant's reliance on New Horizons Limited
(supra) is misplaced, because that case turned on tender
conditions which were flexible. Here the tender language was rigid
and unyielding.
47. The defects pointed out by the Tender Evaluation
Committee were not ornamental lapses, but foundational
shortcomings. To overlook them, would be to change the rules of
the game mid-play; something which Courts have consistently
warned against.
48. The rejection of the appellant's bid cannot be called
arbitrary, mala fide or imbued with perversity. It is the logical
consequence of non-compliance with conditions which the tender
itself declared to be essential.
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49. The learned Single Judge applied the correct principles
and arrived at a conclusion which is unexceptionable. As
emphasized in Kunhayammed & Ors. -Vs- State of Kerala &
Anr. : (2000) 6 SCC 359, an appellate Court must have stronger
reasons to differ with a considered judgment.
50. We find none here.
51. Thus, we hold that the decision of the Tender Evaluation
Committee was in conformity with the notified norms. The learned
Single Judge rightly refused to interfere.
52. The appeal is dismissed.
53. No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
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