M/S Mcphar International Pvt. Ltd vs Deputy Director General
2022 Latest Caselaw 7555 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF MAY, 2022

                     BEFORE

        THE HON'BLE MR.JUSTICE S.G.PANDIT

       WRIT PETITION No.1905/2020 (GM-TEN)

BETWEEN:

M/S.McPHAR INTERNATIONAL PVT.LTD.,
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
LIBERTY BUILDING
SIR VITHALDAS THACKERSAY MARG
NEW MARINE LINES
MUMBAI-400 020
ALSO HAVING ITS OFFICE AT
#2-674/B/3/1, BANJARA HILLS ROAD
NO.12, HYDERABAD-500 034
REPRESENTED BY ITS CFO
AND AUTHORIZED SIGNATORY
MR. ARAVIND KRISHNASWAMY.

                                        ...PETITIONER
(BY SRI S S NAGANAND, SR.COUNSEL A/W
 SRI VIKRAM UNNI RAJAGOPAL, ADV.)

AND:

  1. DEPUTY DIRECTOR GENERAL
     REMOTE SENSING AND AERIAL SURVEYS
     GEOLOGICAL SURVEY OF INDIA
     VASUDHA BHAVAN
     KUMARASWAMY LAYOUT
     BENGALURU-560 111.
                             2

  2. TECHNICAL EVALUATION COMMITTEE
     GEOLOGICAL SURVEY OF INDIA
     VASUDHA BHAVAN
     KUMARASWAMY LAYOUT
     BENGALURU-560 111.

  3. DIRECTOR GENERAL
     GEOLOGICAL SURVEY OF INDIA
     27, JAWAHARLAL NEHRU ROAD
     KOLKATA-700 016.

  4. THE DIRECTOR
     PSS-P & M-I DIVISION
     GEOLOGICAL SURVEY OF INDIA
     27, JAWAHARLAL NEHRU ROAD
     KOLKATA-700 016.
                                       ....RESPONDENTS
(BY SRI M.B.NARGUND, ASG A/W
 SRI S.R. DODAWAD, CGC)


    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE PROCEEDINGS DATED 06.01.2020 HELD BY R2
ANNEXURE-A;     QUASH    THE    COMMUNICATION    DATED
13.01.2020 ISSUED BY R4 TO R1 ANNEXURE-B; QUASH
CLAUSE 3.14(6) OF TENDER PROPOSAL EVALUATION AS
MODIFIED   BY   THE    CORRIGENDUM DATED    17.09.2019
ANNEXURE-J ISSUED BY R1 AND ETC.


    THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED      ON      12/04/2022   COMING   ON     FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
                                    3

                               ORDER

The petitioner who failed to technically qualify in

Global Tender bearing No.D-34/01/2019-20/45 dated

13.08.2019 is before this Court praying for the following

reliefs:

i. Quash the proceedings dated 06.01.2020 held by Respondent No.2 (Annexure-A);

ii. Quash the communication bearing No.138/SP-

13/PSS-P & M-1/Retender/Block-5/2019 dated 13.01.2020 issued by Respondent No.4 to Respondent No.1 (Annexure-B);

iii. Quash Clause 3.14(6) of Tender Proposal Evaluation as modified by the Corrigendum bearing No.D-34/01/2019-20/45 dated 17.09.2019 (Annexure-J) issued by Respondent No.1;

   iv.      Quash     clause   3.13      as    modified   by     the
            Corrigendum    bearing      no.d-34/01/2019-20/45
            dated     17.09.2019      (Annexure-J)    issued     by

Respondent No.1, and direct Respondent No.1 to consider the representations of the Petitioner dated 26.09.2019 (Annexure-K) and 07.11.2019

(Annexure-L) and implement Clause 4.7 of RBI Master Direction RBI/FED/2015-16/4 dated 01.01.2016 (Annexure-M);

v. Direct the Respondents to implement the policy decision of the Government of India in the Public Procurement (preference to Make in India), Order 2017 (Annexure-N);

     vi.     Quash    Global      Tender   Notice   bearing     No.
             D-34/01/2019-20/45            dated     13.08.2019

(Annexure-G) issued by Respondent No.1, and direct the Respondent No.1 to issue fresh tender

incorporating the above changes and provide for evaluation in a fair and objective manner.

2. Brief facts of the case are that, the first respondent

issued Global Tender Notice dated 13.08.2019, inviting

bids for engaging Aerogeophysical Survey Provider(s). The

tender work was to carry out Multi-sensor Aerogeophysical

Surveys over Obvious Geological Potential (OGP) areas of

India. In that regard, for the said year it was proposed to

survey two OGP Blocks i.e., Blocks 5 and 7. As per

Annexure-G tender notice dated 13.08.2019, date of pre-

bid meeting was 26.08.2019 and the last date for

uploading the bid was 23.09.2019. The date for opening

the technical bid was 24.09.2019 and opening of price bid

was 14.10.2019. The tender notice provided that the

bidder can apply for one or more Blocks by submitting

separate Earnest Money Deposit (for short "EMD") for each

Block i.e., Block Nos.5 and 7. The petitioner submitted

his tender and the other two consortium of M/s.MPX

International Corporations and M/s.Saarathi Airways

Private Limited; consortium of M/s.Sander Geophysics

Limited, Canada and M/s.Pan India Limited also

submitted their tender. Before submitting the tender, all

the three bidders participated in the pre-bid meeting held

on 26.08.2019. The Technical Evaluation Committee

evaluated the tenders of the petitioner as well as two

others stated above and found that the other two named

above are technically qualified, having scored 80 points

out of 100 and the petitioner having scored 78 out of 100

was found not technically qualified. Challenging the

proceedings of the Technical Evaluation Committee as well

as challenging clause 3.14(6) and clause 3.13, the

petitioner is before this Court.

3. Heard learned Senior Counsel Sri.S.S.Naganand for

Sri.Vikram Unni Rajgopal learned counsel for petitioner

and Sri.M.B.Naragund, Additional Solicitor General for

Sri.S.R.Dodawad CGC for respondents. Perused the writ

petition papers.

4. Learned Senior Counsel for the petitioner submits

that the action of the respondents particularly Technical

Evaluation Committee/respondent No.2 in holding that

the petitioner is technically not qualified is wholly

arbitrary, unreasonable and unsustainable. It is

submitted that the petitioner is the successful bidder and

has completed the Aerogeophysical Survey in respect of

Block Nos.1, 4, 9 and 11 and as such, the Technical

Evaluation Committee could not have disqualified the

petitioner on the grounds of technical qualification for

Blocks 5 and 7. The petitioner was awarded 94.5 marks

out of 100 marks while awarding contract in relation to

Block Nos.9 to 11 whereas in the present technical

evaluation, the petitioner was arbitrarily awarded 78.5

marks out of 100 only to disqualify the petitioner. It is

submitted that to qualify technically, a tenderer shall have

to secure 80 marks out of 100. Learned Senior Counsel

would submit that awarding of marks and technical

evaluation is wholly arbitrary and is not in accordance

with the tender conditions. It is alleged that the award of

marks to the petitioner is to ensure that the petitioner

would not technically qualify in order to favour foreign

bidders.

5. Learned Senior Counsel submits that clause 3.14(6)

provides evaluation of performance of existing Project

Implementing Agency (PIA), which also provides for

negative marking. It is contended that the petitioner has

been singled out by negative marking and the petitioner is

treated with invidious discrimination. Permitting negative

marking while evaluating the performance of PIA who were

allotted work in previous projects is discriminatory and

violative of Article 14 of the Constitution of India. It is

submitted that the petitioner was the only bidder who

participated in the tender process who was allotted Blocks

in the previous projects and other two participants were

neither allotted nor have carried out similar works in the

previous years, as such, they were not subjected to

negative marking. According to learned Senior Counsel,

providing negative marking under clause 3.14(6) is not a

reasonable classification and favours foreign bidders.

Learned Senior counsel further submitted that when the

petitioner has successfully completed the projects

entrusted by the respondent-Authorities, awarding

negative marking is wholly unjust and unreasonable. It is

submitted that delay in completion of the projects is not

attributable to the petitioner and delay occurred solely due

to the action of the respondents. Thus he submits that

the entire tender evaluation process is arbitrary.

6. Learned Senior counsel referring to clause 3.13-Price

Bid Format, submits that the same is violative of Article

14 of the Constitution of India, in that, the petitioner is

denied to submit his bid in USD when the overseas

bidders are permitted to submit their bid in USD. Clause

3.13 provides for quoting price in Indian Rupees or in US

Dollars and the evaluation of price bids would be done

uniformly in INR with conversion rate to be used as

Reserve Bank of India reference rate, fixed on the day of

opening of the price bids. Further it also states that the

payments will be made only to the lead partners in the

consortium and payment would be made for the amount

and in the currency quoted by the bidder. It is contended

that due to fluctuations in the currency value, which are

based on rate of exchange, evaluation and comparison of

bids made in different currencies would be inaccurate. If

the petitioner quotes the price in INR, he would be paid in

INR. If the tender is awarded, a tenderer would have to

hire equipments, aircraft, etc., to execute the work and to

pay in foreign currency, which would have bearing on the

payments to be made. It is submitted that the clause

relating to payments was modified under corrigendum

dated 17.09.2019 (Annexure-J) without considering the

representations of the petitioner and the amended clause

would favour the foreign bidders. Fluctuations in foreign

currency rates would not affect foreign bidders whereas it

would affect the Indian bidders who quote their price in

INR. Thus, the learned Senior Counsel would submit that

the clause 3.13 as well as clause 3.14(6) of tender

notification dated 13.08.2019 are arbitrary, unreasonable

and discriminates bidders who quote price in INR and

USD.

7. Learned Senior Counsel referring to Annexure-N/

order dated 29.05.2019 of the Ministry of Commerce and

Industry submits that certain benefits are extended to

bidders in public procurement under Make in India policy.

It is submitted that the tender conditions should not

result in unreasonable exclusion of local suppliers who

would otherwise be eligible. When the Government of

India has taken a policy decision to encourage the local

suppliers or local bidders, the same should be given effect

to. Thus, he prays for allowing the writ petition.

8. On the contrary, learned ASG for respondents

submits that there is no merit in any of the contentions

raised by the petitioner and submits that neither clause

3.13 nor clause 3.14(6) are arbitrary or unreasonable.

Learned ASG inviting attention of this Court to

Annexure-A/Minutes of the Technical Evaluation

Committee which the petitioner has prayed to quash

submits that the petitioner is found not technically

qualified, at the same time, the Technical Evaluation

Committee technically qualifies other two bidders. But

the other two bidders who are technically qualified are not

parties to the present writ petition. The respondents in

their statement of objections filed on 24.02.2020 have

specifically contended that the writ petition is liable to be

dismissed for non-joinder of necessary parties, i.e., the

beneficiaries from Annexure-A/Minutes of Technical

Evaluation Committee. Even though the statement of

objections was filed on 24.02.2020, even to this date, for

more than two years, the petitioner has not taken any

steps to implead them as respondents, which itself

indicates that it is not a bonafide writ petition.

9. Learned ASG submits that it is not open for the

petitioner to contend that clause 3.13 as well as 3.14 (6) of

tender notice dated 13.08.2019 are arbitrary,

unreasonable and discriminatory, since the petitioner

participated in the pre-bid meeting and submitted an

undertaking of acceptance of terms and conditions of

tender along with the bids as required under Clause 2(m)

of the tender notice. Further the learned ASG would

submit that the petitioner's representation with regard to

Price Bid Format was considered and to some extent price

bid format was modified under Annexure-J dated

17.09.2019, to the effect that if the lead partner of the

consortium is an Indian Company or Agency it has to

quote only in INR and payment will be made in INR and in

case of foreign company or lead partner of the consortium

is a foreign company or agency, it has to quote only in

USD and payment will be made in USD only. Further,

learned ASG placing reliance on the decision of the

Hon'ble Apex Court in JAGADISH MANDAL v/s STATE

OF ORISSA AND OTHERS reported in (2007)14 SCC 517

submits that evaluating tenders and awarding contracts

are essentially commercial functions and if the decision is

bonafide and is in public interest, the Courts normally

would not interfere even if a procedural abression or error

in assessment or prejudice to a tenderer, is made out.

Further, it is submitted that technical evaluation of a

tender is best left to the technical persons and this Court

would not be in a position to examine as to whether

technical evaluation is proper and correct.

10. Learned ASG submits that a tenderer has to obtain

80 marks out of 100 marks to qualify himself technically.

The tender document itself provides procedure for

evaluation of tender and it would not be possible for the

Technical Evaluation Committee to deviate from the same.

Based on the criteria prescribed for technical evaluation,

the petitioner could score only 78.5 marks and as such,

the petitioner was not qualified technically. It is

submitted, assuming that the petitioner is not awarded

negative marking, even then the petitioner would not

qualify technically. Thus, it is submitted that it is not

open for the petitioner to contend that by applying

negative marking, the petitioner is singled out.

11. Learned ASG submits that the petitioner was aware

of the terms and conditions of the Tender Notification.

But the petitioner is before this Court after having

accepted and kept quite, until the petitioner is declared

disqualified technically. The petitioner having participated

in the process accepting the terms and conditions of the

tender, could not have challenged subsequently when he

came to know that he is not technically qualified.

12. At the first instance, to appreciate the contentions

of the petitioner it would be necessary to look into the

relevant case laws with regard to judicial review in the

matter of evaluating and awarding of tender. The scope

of judicial review in the matter of this nature is very

limited and further this Court would not sit as an

appellate authority to examine the administrative

decision of the authorities.

13. The Hon'ble Apex Court in the case of JAGADISH

MANDAL (supra) was examining the scope of judicial

review in contractual matters, that too in the matter of

evaluating and awarding of tender. The ratio laid down by

the Hon'ble Apex Court at paragraph 22 in the judgment

is as follows:

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions.

Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of

molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :

i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached."

ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different

footing as they may require a higher degree of fairness in action."

14. In AFCONS INFRASTRUCTURE LIMITED v/s

NAGAPUR METRO RAIL CORPORATION LIMITED AND

ANOTHER reported in (2016)16 SCC 818, the Hon'ble

Apex Court was examining the question of evaluation of

technical bid and interpretation of clause of tender

document and in that circumstance, it is held that owner

or employer of the project having authored tender

documents, is the best person to understand and

appreciate its requirements and interpret its documents.

Relevant portion of paragraphs 11, 13 and 15 reads as

follows:

"11. Recently, in Central Coalfields Ltd. v. SLL- SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone.

Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.

13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision-making process or the decision.

15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the

application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."

15.   In   MUNICIPAL           CORPORATION,       UJJAIN         AND

ANOTHER       v/s BVG      INDIA      LIMITED    AND     OTHERS

reported in (2018)5 SCC 462, the Hon'ble Apex Court

was considering the question, whether under the scope of

judicial review, the High Court could ordinarily question

the judgment of the expert consultant on the issue of

technical qualifications of a bidder when the consultant

takes into consideration various factors including the

basis of non-performance of the bidder. While answering

the above question, the Hon'ble Apex Court held that the

High Court cannot ordinarily interfere with the judgment

of Expert Consultant of issues of technical qualifications

of a bidder when Consultant takes into consideration

various factors including the basis of non-performance of

the bidder. The relevant portion at paragraphs 14, 15, 16

and 45 reads as follows:

"14. The judicial review of administrative action is intended to prevent arbitrariness. The purpose of judicial review of administrative action is to check whether the choice or decision is made lawfully and not to check whether the choice or decision is sound. If the process adopted or decision made by the authority is not mala fide and not intended to favour someone; if the process adopted or decision made is neither so arbitrary nor irrational that under the facts of the case it can be concluded that no responsible authority acting reasonably and in accordance with relevant law could have reached such a decision; and if the public interest is not affected, there should be no interference under Article 226.

15. It is well settled that the award of contract, whether it is by a private party or by a public body or by the State, is essentially a commercial transaction. In arriving at a commercial decision, the considerations which are of paramount importance are commercial considerations. These would include, inter alia, the price at which the party is willing to work; whether

the goods or services offered are of the requisite specifications; and whether the person tendering the bid has the ability to deliver the goods or services as per the specifications. It is also by now well settled that the authorities/State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation.

16. The State, its corporations, instrumentalities and agencies have a public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise them only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. (See the judgment in Air India Ltd. v. Cochin International Airport Ltd.

      45.    Evaluating      tenders     and      awarding
contracts      are        essentially          commercial

transactions/contracts. If the decision relating to

award of contract is in public interest, the Courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. The power of judicial review will not be permitted to be invoked to protect private interest by ignoring public interest. Attempts by unsuccessful bidders with an artificial grievance and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness. The exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. In the matter on hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on the part of the expert body while in action. So also, we do not find any bias or mala fides either on the part of the corporation or on the part of the technical expert while taking the decision. Moreover, the decision is taken keeping in mind the public interest and the work experience of the successful bidder."

16. In NG PROJECTS LIMITED v/s VINOD KUMAR JAIN

AND OTHERS reported in 2022 SCC Online SC 336, the

Hon'ble Apex Court was examining the scope of

interference by the High Court in evaluation of tender and

awarding and has held that the satisfaction whether a

bidder satisfies the tender condition is primarily upon the

authority inviting the bids. Further, it observed that if the

Court finds that there is total arbitrariness or that the

tender has been granted in malafide manner, still the

Court should refrain from interfering in grant of tender,

but instead relegate parties to seek damages for the

wrongful exclusion rather than to injunct the execution of

contracts. The relevant paragraphs 22 and 23 reads as

follows:

"22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the

same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead

relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."

17. In the background of the above legal position the

contention of the petitioner is to be examined. It is

contended on behalf of the petitioner that evaluation of

technical bid of the petitioner and awarding of marks is

totally arbitrary and unreasonable. Global Tender Notice

dated 13.08.2019 invites tender for engaging

Aerogeophysical Survey Provider(s). The pre-bid meeting

was held on 26.08.2019 in which, the petitioner

participated and submitted his acceptance for terms and

conditions of the tender in a Format as given in

Annexure-2 to the Tender documents. The petitioner was

aware of the terms and conditions of the tender while

submitting his tender and being fully aware of terms

participated in the tender process. But the petitioner is

before the Court only after he is declared disqualified

technically.

18. Clause 3.2 of Tender notice dated 13.08.2019

(Annexure-G) indicates the scope of work of the contract

and operational guidelines. Clause 3.14 of Tender Notice

provides for criteria for evaluation of bids. Evaluation of

proposal was two-stage process. Evaluation of technical

and price bids would be by Technical Evaluation

Committee. Further it makes it clear that a bidder who

qualifies technically only would be eligible to open his

financial bid. To qualify in technical evaluation, a

tenderer shall meet the minimum threshold of 80 out of

100 marks. Clause 3.14 of tender notice provides criteria

for awarding of marks, i.e., Aircraft and Survey

Equipments (23 points); Skill and Experience as an

Airborne Survey PIA (29 points); Airborne Survey and

Deliverables Plan (28 points); Quality Control Plan (10

points) and Ability to Supply Staff and Material Resources

(10 points). Further, it also provides for awarding marks

for Performance of the existing PIAs and on assessing

performance, it could award negative marks to a

maximum of 10. The performance of PIAs would be

assessed and one of the parameters for evaluation of

performance in the previous project would be initiation of

project in the given schedule timeline and completion of

the data acquisition in the given schedule timeline.

Clause 3.14(6) makes it clear that scoring will be based on

an assessment of the PIAs demonstrated ability to supply

the necessary resources and contingency plan in the event

of resource changes. On the above criteria, the second

respondent-Technical Evaluation Committee, evaluated

the bid of the petitioner as per Annexure-A and awarded

total marks of 78.5. Annexure-A/Minutes of the Technical

Evaluation Committee makes it clear that the technical

bids were evaluated by the members of the Committee as

per clause 3.14 of the tender document. The petitioner is

awarded 78.5 marks and thereafter on evaluation under

clause 3.14(6), the petitioner was awarded 5.5 negative

marks. Thus, petitioner's points or marks was reduced to

73. Whether petitioner's points or marks is 78.5 or 73, it

would be of no consequence, since the petitioner is not

qualified, having not met the minimum threshold of 80

out of 100 marks. If the petitioner's marks or points is

taken at 78.5 without negative marking, even then the

petitioner would not cross the minimum requirement of 80

out of 100. In other words, without negative marking, the

petitioner would not technically qualify. Negative marking

has not kept the petitioner out of tender process.

Therefore, the contention of the petitioner that the

petitioner is singled out by awarding negative marking has

no merit.

19. It is submitted that while awarding contract to the

petitioner in respect of other Blocks on previous occasion,

the petitioner was awarded more marks on similar criteria.

The technical evaluation is by the Technical Evaluation

Committee, which consists of 10 members who are experts

in the field. Clause 3.14 of the tender document states

that pricing proposals would be opened for only those

technical proposals that meet the minimum threshold of

80 out of 100. The tender work is to carry out Multi-

sensor Aerogeophysical surveys over Obvious Geological

Potential (OGP) areas of India. In this nature of technical

bid, whether a bidder satisfies the tender condition or

whether a bidder qualifies technically is primarily upon

the satisfaction of the authority inviting tender. The

Tender Inviting Authority would be well aware of its

requirement and its experts would be in a position to

appreciate the capability or readiness of a tenderer to

carry out or execute such technical work. In the case on

hand, it is for the Technical Evaluation Committee to

assess the technical qualification based on the criteria

provided under clause 3.14. The Court would not possess

the expertise to examine the correctness of the technical

evaluation. As held by the Hon'ble Apex Court, evaluating

the tender and awarding contracts are essentially

commercial functions and evaluation is best left to the

wisdom of the experts in the field. Awarding of marks by

Expert Evaluating Committee cannot be gone into by this

Court under Article 226 of the Constitution of India.

20. Under clause 3.13, a bidder may quote price in

Indian Rupees (INR) or in US Dollars (USD). But

subsequently, on the representation of the petitioner and

similarly situated persons, corrigendum dated 17.09.2019

(annexure-J) was issued modifying certain clauses.

Modified clause 3.13 reads as follows:

1. If the lead partner of the consortium is an Indian company/firm/agency, it has to quote only in INR and payment will be made in INR only as per the payment schedule mentioned in the milestone.

2. In case of Foreign Company or Lead partner of the consortium is a foreign company/firm/agency, it has to

quote only in USD and payment will be made in USD only as per the payment schedule mentioned in the milestone.

3. Prevailing GOI provision will be applicable in case of GST, TDS etc.

In terms of the above modified clause, if the lead partner

of consortium is an Indian Company/Firm/Agency it has

to quote only in INR and payment also would be made in

INR. In case of foreign company or lead partner is a

Foreign Company/Firm/Agency, it has to quote only in

USD and payments would be made in USD only. As

contended by the learned counsel for the petitioner it

would not be violative of Article 14 of the Constitution of

India if the petitioner is not permitted to submit his bid in

USD. Whether a bid is submitted in INR or USD, the

evaluation of price bid would be done in INR with

conversion rate fixed by the Reserve Bank of India on the

day of opening of the price bids as provided under clause

3.13.1. Clause 3.13.1 requires evaluation of price bids

uniformly in INR with reference to conversion rate as on

the date of opening of the price bids. When the evaluation

of price bid is in INR with conversion rate as fixed by the

Reserve Bank of India on the date of opening of the price

bids, there would be uniformity in evaluation of price bids.

Whether payment is made in INR or USD, it would make

no difference since it would depend on the conversion rate

as fixed by the Reserve Bank of India.

21. The contention that in view of order dated

29.05.2019 (Annexure-N), the petitioner, a local supplier

is to be given preference has no merit since the petitioner

has not technically qualified. Even otherwise, it is a

global tender, involving highly technical issue. The

tendered work requires expertise in the field. Moreover,

the Government Order dated 29.05.2019 (Annexure-N)

would not confer any right on the petitioner and on the

other hand it is a policy decision to encourage "Make In

India" and promote manufacturing and production of

goods and services in India with a view to enhancing

income and employment.

22. In NG PROJECTS LIMITED (supra), the Hon'ble

Supreme Court has made it clear that the Writ Court

should refrain itself from imposing its decision over the

decision of the employer as to whether or not to accept a

bid of a tenderer. The Court does not have the expertise

to examine the terms and conditions of the present day

economic activities of the State and those limitations

should be kept in view. The Courts should be even more

reluctant in interfering with the contracts involving

technical issues as there is a requirement of the necessary

expertise to adjudicate upon such issues.

23. For the reasons recorded above and in the facts and

circumstances of the present technical issue involved in

the tender, neither clause 3.14(6) nor clause 3.13 of the

Tender Notification is arbitrary nor unreasonable.

24. The writ petition is also liable to be dismissed on the

ground of non-joinder of necessary parties. One of the

prayers of the petitioner is to quash the proceedings dated

06.01.2020 (Annexure-A) of the Technical Evaluation

Committee, Geological Survey of India. Under

Annexure-A/Minutes of the Technical Evaluation

Committee, the Committee assessed the technical bids of

3 participants including the petitioner. In the technical

evaluation, the other two participants i.e., M/s.MPX

Geophysics Ltd., Consortium of M/s.MPX International

Corporations and M/s.Saarathi Airways Private Limited;

consortium of M/s.Sander Geophysics Limited,

consortium M/s.Sander Geophysics Limited, Canada and

M/s.Pan India Limited were declared technically qualified,

whereas the petitioner failed to technically qualify. If the

prayer of the petitioner is allowed and proceedings dated

06.01.2020 are quashed, the consortium which is

technically qualified would be affected. The two

consortiums stated above acquired right to open their

financial bids having qualified technically under the

proceedings at Annexure-A. It is settled position of law

that any order that would be passed by a Court would

affect a person, such person shall be heard before passing

such order. Even though the respondents had filed

statement of objections more than a year back pointing

out non-making of necessary parties, the petitioner has

failed to take appropriate steps to implead those two

consortium who are technically held to be qualified under

Annexure-A proceedings. The consortiums which

technically qualified under Annexure-A was necessary

party to the present writ petition. In the absence of

persons likely to be affected by the relief prayed for, the

writ petition is liable to be dismissed.

For the reasons recorded above, the writ petition

stands dismissed.

Sd/-

JUDGE mpk/-*CT:bms