Madras High Court
A.Pandian vs The Superintending Engineer on 17 October, 2023
WP(MD)No.16853 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.10.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
WP(MD)No.16853 of 2023
and
WMP(MD)Nos.14081 & 14085 of 2023
A.Pandian ... Petitioner
v.
1.The Superintending Engineer,
Public Works Department,
Buildings (Construction and Mainenance)
Circle,
Madurai – 625 002.
2.The Executive Engineer,
Public Works Department,
Buildings Construction Division,
Madurai – 625 002. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus to directing the
1st respondent to call for the records of the entire impugned rejection order of
E-tender summary report dated 08.07.2023 in respect of the work and quash
the same as illegal and void and consequently directing the 1st respondent to
declare the petitioner as successful bidder on the basis of the quoting of
lowest price and allot the petitioner in the work order for the subject matter of
the tender after accepting the petitioner valid tender in respect of the work or
proceed with fresh tender proceedings.
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WP(MD)No.16853 of 2023
For Petitioner : Mr.K.Muraleedharan
For Respondents : Mr.Veerakathiravan,
Additional Advocate General
assisted by Mr.S.Ra.Ramachandran
Additional Government Pleader
ORDER
The petitioner participated in the tender process floated by the first
respondent for carrying out the work of construction of Taluk Office building at
Melur in Madurai District. Notification was issued on 06.06.2023. The last
date for submission of tender was 28.06.2023 at 03.00 P.M. The tenders were
to be submitted online. Single cover system was to be adopted. The writ
petitioner's tender was rejected on 08.07.2023 and information to that effect
was uploaded in the web portal. Challenging the same, this present writ
petition came to be filed.
2.When the matter was taken up for admission on 13.07.2023, interim
order was granted since submission was made that compared to the
successful tenderer, the petitioner's quote was lower by Rs.21.00 lakhs.
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WP(MD)No.16853 of 2023
3.The learned counsel appearing for the petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition and
called upon this Court to set aside the impugned order and grant relief as
prayed for.
4.The respondents have filed counter affidavit and the learned
Additional Advocate General took me through its contents and contended that
rejection of the petitioner's technical bid was justified and he called upon this
Court to dismiss the writ petition.
5.I carefully considered the rival contentions and went through the
materials on record. The foremost stand of the respondents is that the
petitioner failed to furnish certain material documents. My attention is drawn
to the following clause found in the tender qualification under the heading
“For Special Attention of the Tenderer” :
“5.The following particulars shall also be furnished by the
contractor along with the tender :
a) List of details of works executed by the contractor with
their value.
b) A list of details of work under execution by the
contractor with their values.
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WP(MD)No.16853 of 2023
c)Annual turnover of the last one year (necessary
certificate to the effect issued by the respective bank shall be
attached).”
I wanted to know from the learned counsel for the petitioner if the particulars
as required in the aforesaid clause were uploaded along with the tender
application. The learned counsel for the petitioner would on the other hand
insist that it was not a mandatory clause to be complied with but only
directory. According to him, the minimum criteria for qualification has been
set out in Clause 9 of the Special Conditions. The said clause reads as under :
“The applicant should produce Income Tax Clearance
Certificate valid for the current period, “VAT” Verification
Certificate (ie., previous assessment year) and “TIN” number
having validity and copy of Goods and Services Tax (GST)
Registration No.”
The learned counsel for the petitioner contended that since the petitioner has
enclosed the necessary certificate, the petitioner should be deemed to have
fulfilled the minimum criteria for qualification and that therefore, the
authorities ought to have gone only by the financial quote of the tenderers.
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WP(MD)No.16853 of 2023
6.I am not persuaded by this submission. It is true that the tender
conditions can be categorised into two : a) mandatory conditions and b)
directory conditions. The tender inviting authority will consider if the bid
submitted by a tenderer is substantially responsive to the bid requirements. If
the bid is substantially responsive and if any of the conditions has not been
fulfilled, it is open to the tender inviting authority to condone the lapse on the
part of the tenderers. The whole issue boils down to whether the condition is
a material one or not. If a material condition is not satisfied, even if the
tenderer is qualified on all other aspects, still the authority would be justified
in rejecting the tender. I am more than satisfied that the requirement set out
in clause 5 under “For Special Attention of the Tenderor” is a material
condition.
7.Unless the details sought for by the tender inviting authority are
furnished, the authority will not be able to take a call on the credentials of the
tenderer. It is true that in the rejection order, the tender inviting authority had
stated that since experience certificate has not been furnished, the tender had
been rejected for technical reasons. The authority actually had the non-
fulfillment of the requirement set out in clause 5 under “For Special Attention
of the Tenderer” in mind when the said order was passed. The Hon'ble
Supreme Court in the decision reported in (2020) 17 SCC 577 (Vidarbha
Irrigation Development Corpn. v. Anoj Kumar Agarwala) held as follows :
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WP(MD)No.16853 of 2023
“14. The law on the subject is well settled. In Bakshi Security
& Personnel Services (P) Ltd. v. Devkishan Computed (P)
Ltd. [Bakshi Security & Personnel Services (P)
Ltd. v. Devkishan Computed (P) Ltd., (2016) 8 SCC 446] , this
Court held : (SCC p. 453, paras 14-16)
“14. The law is settled that an essential condition of a tender
has to be strictly complied with. In Poddar Steel
Corpn. v. Ganesh Engg. Works [Poddar Steel Corpn. v. Ganesh
Engg. Works, (1991) 3 SCC 273] this Court held as under :
(SCC p. 276, para 6)
‘6. … The requirements in a tender notice can be classified into
two categories—those which lay down the essential conditions
of eligibility and the others which are merely ancillary or
subsidiary with the main object to be achieved by the condition.
In the first case the authority issuing the tender may be required
to enforce them rigidly. In the other cases it must be open to the
authority to deviate from and not to insist upon the strict literal
compliance with the condition in appropriate cases.’
15. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services
Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd.,
(2006) 11 SCC 548] this Court held as under : (SCC pp.
571-72, para 66)
‘(i) if there are essential conditions, the same must be adhered
to;
(ii) if there is no power of general relaxation, ordinarily the
same shall not be exercised and the principle of strict
compliance would be applied where it is possible for all the
parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties
in regard to any of such conditions, ordinarily again a power of
relaxation may be held to be existing;
(iv) the parties who have taken the benefit of such relaxation
should not ordinarily be allowed to take a different stand in
relation to compliance with another part of tender contract,
particularly when he was also not in a position to comply with
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WP(MD)No.16853 of 2023
all the conditions of tender fully, unless the court otherwise
finds relaxation of a condition which being essential in nature
could not be relaxed and thus the same was wholly illegal and
without jurisdiction;
(v) when a decision is taken by the appropriate authority upon
due consideration of the tender document submitted by all the
tenderers on their own merits and if it is ultimately found that
successful bidders had in fact substantially complied with the
purport and object for which essential conditions were laid
down, the same may not ordinarily be interfered with;’
16. We also agree with the contention of Shri Raval that the
writ jurisdiction cannot be utilised to make a fresh bargain
between parties.”
15. However, the learned counsel appearing on behalf of the
appellant strongly relied upon Afcons Infrastructure
Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure
Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] ,
and paras 14 and 15 in particular, which state : (SCC p. 825)
“14. We must reiterate the words of caution that this Court has
stated right from the time when Ramana Dayaram
Shetty v. International Airport Authority of India [Ramana
Dayaram Shetty v. International Airport Authority of India,
(1979) 3 SCC 489] was decided almost 40 years ago, namely,
that the words used in the tender documents cannot be ignored
or treated as redundant or superfluous — they must be given
meaning and their necessary significance. In this context, the
use of the word “metro” in Clause 4.2(a) of Section III of the
bid documents and its connotation in ordinary parlance cannot
be overlooked.
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
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WP(MD)No.16853 of 2023
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.”
16. It is clear even on a reading of this judgment that the words
used in the tender document cannot be ignored or treated as
redundant or superfluous—they must be given meaning and
their necessary significance. Given the fact that in the present
case, an essential tender condition which had to be strictly
complied with was not so complied with, the appellant would
have no power to condone lack of such strict compliance. Any
such condonation, as has been done in the present case, would
amount to perversity in the understanding or appreciation of the
terms of the tender conditions, which must be interfered with by
a constitutional court.”
In the decision reported in (2022) 6 SCC 127 (N.G.Projects Limited v.
Vinod Kumar Jain and ors), the Hon'ble Supreme Court held as follows :
“16.In Galaxy Transport Agencies v. New J.K. Roadways [Galaxy
Transport Agencies v. New J.K. Roadways, (2021) 16 SCC 808 :
2020 SCC OnLine SC 1035] , a three-Judge Bench again reiterated
that the authority that authors the tender document is the best person
to understand and appreciate its requirements, and thus, its
interpretation should not be second-guessed by a court in judicial
review proceedings. It was observed as thus : (SCC paras 17-18 &
20)
“17. In accordance with these judgments and noting that the
interpretation of the tendering authority in this case cannot be said to
be a perverse one, the Division Bench [New JK Roadways v. UT of
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WP(MD)No.16853 of 2023
J&K, 2020 SCC OnLine J&K 733] ought not to have interfered with
it by giving its own interpretation and not giving proper credence to
the word “both” appearing in Condition No. 31 of the NIT. For this
reason, the Division Bench's conclusion that JK Roadways was
wrongly declared to be ineligible, is set aside.
18. Insofar as Condition No. 27 of the NIT prescribing work
experience of at least 5 years of not less than the value of Rs 2 crores
is concerned, suffice it to say that the expert body, being the Tender
Opening Committee, consisting of four members, clearly found that
this eligibility condition had been satisfied by the Appellant before
us. Without therefore going into the assessment of the documents that
have been supplied to this Court, it is well settled that unless
arbitrariness or mala fide on the part of the tendering authority is
alleged, the expert evaluation of a particular tender, particularly when
it comes to technical evaluation, is not to be second-guessed by a writ
court. Thus, in Jagdish Mandal v. State of Orissa [Jagdish
Mandal v. State of Orissa, (2007) 14 SCC 517] , this Court noted :
(SCC pp. 531-32, para 22)
‘22. Judicial review of administrative action is intended to prevent
arbitrariness, irrationality, unreasonableness, bias and mala fides. Its
purpose is to check whether choice or decision is made “lawfully”
and not to check whether choice or decision is “sound”. When the
power of judicial review is invoked in matters relating to tenders or
award of contracts, certain special features should be borne in mind.
A contract is a commercial transaction. Evaluating tenders and
awarding contracts are essentially commercial functions. Principles
of equity and natural justice stay at a distance. If the decision
relating to award of contract is bona fide and is in public interest,
courts will not, in exercise of power of judicial review, interfere even
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WP(MD)No.16853 of 2023
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 blacklisting 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.’
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WP(MD)No.16853 of 2023
***
20. This being the case, we are unable to fathom how the Division
Bench, on its own appraisal, arrived at the conclusion that the
Appellant held work experience of only 1 year, substituting the
appraisal of the expert four-member Tender Opening Committee with
its own.”
8.Respectfully applying the aforesaid principles, I am satisfied that the
petitioner's tender application did not conform to the bid requirements and
therefore it was rightly rejected. No case for interference is made out. This
writ petition is dismissed. The EMD amount remitted by the petitioner shall be
returned to the petitioner immediately and without any delay. No costs.
Connected miscellaneous petitions are closed.
17.10.2023
Index : Yes / No
Internet : Yes / No
Skm
To
1.The Superintending Engineer,
Public Works Department,
Buildings (Construction and Mainenance)
Circle, Madurai – 625 002.
2.The Executive Engineer,
Public Works Department,
Buildings Construction Division,
Madurai – 625 002.
https://www.mhc.tn.gov.in/judis
WP(MD)No.16853 of 2023
G.R.SWAMINATHAN, J.
SKM
WP(MD)No.16853 of 2023
and
WMP(MD)Nos.14081 & 14085 of 2023
17.10.2023
https://www.mhc.tn.gov.in/judis
