Ghspl Begusarai vs The State Of Odisha &
2023 Latest Caselaw 8737 Ori

                  ORISSA HIGH COURT: CUTTACK

AFR                     W.P(C) NO. 24594 OF 2023

       In the matter of an application under Article 226 of the
       Constitution of India.
                              ---------------

GHSPL Begusarai, Health Care LLP, a Limited Liability Partnership Firm, Kolkata ..... Petitioner

-Versus-

       The State of Odisha &
       Ors.                         .....              Opp. Parties


           For petitioner    :   Mr. G. Mukherji, Sr. Advocate
                                 along with M/s. (Ms.) A.
                                 Mukherji,    A.   Mishra,    K.
                                 Banerjee, S. Acharya, M. Wright
                                 & A. Acharya, Advocates

For opp. parties : Mr. L. Samantaray, Addl. Govt. Advocate

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 04.08.2023 :: Date of Judgment: 08.08.2023 // 2 //

DR. B.R. SARANGI,J. The petitioner, GHSPL Begusarai, Health

Care LLP, a Limited Liability Partnership Firm

incorporated under the provisions of the Indian

Partnership Act, 1932 and a registered MSME unit

under the Ministry of Micro, Small and Medium

Enterprises, by means of this writ petition, seeks to

quash the Request For Proposal (hereinafter referred to

as "RFP") dated 26.05.2023 under Annexure-1 issued

by the Chief District Medical & Public Health Officer,

Keonjhar, Odisha for "Selection of agency for setting up

& operation of Digital Dispensaries in Keonjhar district

under District Mineral Foundation Keonjhar".

2. The factual matrix of the case, in brief, is

that the petitioner is a wholly owned subsidiary of

Glocal Healthcare Systems Private Limited (hereinafter

referred to as "Glocal"), which is a company engaged in

the business of providing health care services

throughout the country in the field of digital

dispensaries since 2010. The Directors and Senior

Executives of Glocal are the designated partners of the

petitioner firm. Opposite party no.2 issued an RFP on // 3 //

26.05.2023 under Annexure-1, which was published in

daily newspapers, namely, "The Times of India",

"Dharitri" and "Pragatibadi" on 27.05.2023 for

"Selection of agency for setting up & operation of Digital

Dispensaries in Keonjhar district under District Mineral

Foundation, Keonjhar". Thereafter, a corrigendum was

issued by opposite party no.2 by way of an

advertisement on 31.05.2023 to the following effect:-

"In the RFP document, Due to typographical error, it was mentioned that, Deadline for submission of Pre-Proposal Query : dt.

05.06.2023 on [email protected]. In place of [email protected] it may be read as [email protected] & all other terms and conditions of the said RFP is remain unchanged."

2.1 Followed by the advertisement and the

corrigendum issued by the office of opposite party no.2,

a Letter of Invitation, vide letter no.2812/NHM

Keonjhar/2023 dated 08.06.2023, was issued for

"Selection of agencies for setting up & operation of

Digital Dispensaries in Keonjhar district under District

Mineral Foundation Keonjhar in Keonjhar District,

Odisha", pursuant to which the petitioner participated

in the tender evaluation process. The petitioner was // 4 //

informed about the date of the technical bid by the

office of opposite party no.2, by issuing a request letter,

to participate in the technical bid. As such, in terms of

the RFP, the petitioner had the requisite qualifications

to qualify for presentation of the technical bid, as only

such bidders, who qualified in the preliminary bid, were

called upon to make the presentation for the technical

bid. The petitioner participated in the technical bid held

on 23.06.2023 and made its presentation in the

technical bid.

2.2 The process of tender evaluation in Odisha is

conducted in two steps. The first step is the

participation in the technical bid and thereafter second

step is the participation in the financial bid. The

evaluation of the proposal is conducted in three parts,

the first part is the preliminary evaluation, the second

part is the technical proposal and the third part is the

financial evaluation. The second stage of technical

proposal is exclusively opened for those bidders, who

qualify the preliminary evaluation. The petitioner

qualified the first stage of preliminary evaluation and // 5 //

thereby participated in the technical proposal which

included the presentation. The criteria for marking are

based on certain parameters, which are evaluated on

arithmetical terms. Any bidder, who can present the

requisite prerequisites, would be awarded certain marks

which are predetermined. Relying upon Glocal's past

performance and wide experience that the petitioner

submitted its bid and expected that its bid would be

most competitive and it would continue operations.

2.3 In the process of evaluation, while marks are

earmarked with regard to certain criterion, an abnormal

percentage of 40% was kept aside for personal

interview, i.e., technical presentation. Thereby, on the

discretion of the authorities, which itself is arbitrary

and unconscionable, a huge percentage of marks in the

process of selection of a specialized service were left

open to discretion, thereby leaving the process of

evaluation to qualify or not to qualify a bidder entirely

at the discretion of the authorities. As the petitioner

could not qualify as per the mathematical evaluation, it // 6 //

was not called upon to participate in the financial bid.

Hence, this writ petition.

3. Mr. G. Mukherji, learned Senior Counsel

along with Ms. A. Mukherji, learned counsel appearing

for the petitioner contended that the petitioner is a

wholly owned subsidiary of Glocal and that the

requirement regarding experience cannot be construed

to mean that the said experience should be of the

tenderer in its name only. It is further contended that to

visualize a situation where a person having past

experience entered into a partnership and the tender

was submitted in the name of the partnership firm,

which may not have past experience of a partner of the

firm, cannot be taken into consideration. Thereby, it is

contended that taking into consideration the criteria for

marking, it can positively be presumed that the

petitioner scored satisfactory qualifying marks of above

60 basing on Glocal's experience, the number of digital

dispensaries run by Glocal till date, and most

importantly the fact that Glocal, of which the petitioner

is a wholly owned subsidiary, has been successfully // 7 //

running digital dispensaries in the region for which the

tender has been floated, for the past 7 years. The Glocal

has run 15 centres in Keonjhar and about 40 centres in

other districts in Odisha establishing their technical

capability beyond doubt. It is further contended that in

the process of evaluation, while marks are earmarked

with regard to certain criterion, an abnormal percentage

of 40% is being kept aside for personal interview, i.e.,

technical presentation, and thereby on the discretion of

the authorities, which itself is arbitrary and

unconscionable, as such a huge percentage of marks in

the process of selection of a specialized service cannot

be left open to discretion, thereby leaving the process of

evaluation to qualify or not to qualify a bidder entirely

at the discretion of the authorities, cannot be sustained

in the eye of law. Referring to Annexure-6, it is further

contended that the petitioner ought to have scored 49

out of 60 and there was no scope for cancelling even a

single mark from the said categories. The petitioner

would not have scored 11 marks out of 40 in the

technical presentation, but the petitioner, with its // 8 //

requisite qualification and quality of presentations,

reasonably expected to get 35 out of 40 in the technical

presentation, which was more than enough to take it to

participate in the financial bid. Therefore, awarding of

11 marks out of 40 in the technical presentation

category is arbitrary, unreasonable and contrary to the

provisions of law and, therefore, the petitioner seeks for

interference of this Court in this case. To substantiate

his contentions, he has relied upon New Horizons

Limited V. Union of India (UOI), (1995) 1 SCC 478.

4. Per contra, Mr. L. Samantary, learned Addl.

Government Advocate appearing for the State-opposite

parties vehemently contended that the petitioner is a

partnership firm, as has been indicated in the cause

title, which is stated to be a wholly owned subsidiary of

Glocal Healthcare Systems Private Limited. But it wants

to take advantage of the experience of Glocal Healthcare

Systems Private Limited, which is a company engaged

in the business of providing health care services

throughout the country in the field of digital

dispensaries since 2010. Therefore, it is further // 9 //

contended that the experience gained by the Glocal

Healthcare Systems Private Limited cannot be taken

into consideration for acquisition of experience by the

petitioner firm. Rather, the conditions stipulated in the

RFP require that a tenderer should possess experience

which would be taken into consideration for evaluation

of the tender. The same having not been available, in

terms and conditions of the tender documents, the

benefit of acquisition of experience by the petitioner

through Glocal Healthcare Systems Private Limited

cannot be utilized for the purpose of acquiring

qualification, may it be a subsidiary of Glocal

Healthcare Systems Private Limited. It is further

contended that much argument was advanced by

learned Senior Counsel appearing for the petitioner with

regard to evaluation of marks as per the tender

documents and many communications were referred to

indicating that the petitioner would have qualified in

the technical bid, if the marks were taken into

consideration, but, as a matter of fact, the petitioner

has not challenged the decision making process rather // 10 //

has challenged the clauses basing upon which the

determination has been made so far as evaluation of

technical bid is concerned. Thereby, the same cannot be

sustained in the eye of law and the writ petition is liable

to be dismissed.

5. This Court heard Mr. G. Mukherji, learned

Senior Counsel along with Ms. A. Mukherji, learned

counsel appearing for the petitioner and Mr. L.

Samantaray, learned Addl. Government Advocate

appearing for the State-opposite parties in hybrid mode.

Since the matter has been taken up for final disposal at

the admission stage with the consent of learned counsel

for the parties, without inviting counter affidavit, the

petitioner has to substantiate its case on the basis of

the conditions stipulated in the RFP.

6. In the above premises, the relevant clauses of

the RFP dated 26.05.2023 issued under Annexure-1 for

"Selection of agency for setting up & operation of digital

dispensaries in Keonjhar district under District Mineral

Foundation, Keonjhar" are quoted below:-

// 11 //

"2. Documents/Formats for submission along with Technical Proposal

Xxx xxx xxx

10. List of completed assignments of similar nature (Past Experience Details, TECH-5) along with copies of contracts/work orders/completion certificate/Experience certificate from previous Clients.

      Xxx            xxx                  xxx

Any         deviation        from         the       prescribed

procedures/information/formats/conditions shall result in out-right rejection of the proposal. All the pages of the proposal must be sealed and signed by the authorized representative of the bidder. Bids with any conditional offer shall be out rightly rejected. All pages of the proposal must have to be sealed and signed by the authorized representative of the bidder Agency shall submit only single bid in prescribed format. Multiple bids from same agency will lead to rejection of both bids. Any conditional bids will be rejected.

xxx xxx xxx

8. Opening of the Proposal

The FIRST ENVELOPE containing Technical Proposal will be opened in the initial stage by the Client in presence of the bidder/bidder's representatives at the location, date specified in the Bidder Data Sheet. The Client will constitute a Consultant Evaluation Committee (CEC) to evaluate the proposals submitted by bidders. Only one representative will proper authorization letter from the participating bidder will be allowed to attend the bid opening meeting. The SECOND ENVELOPE containing Financial Proposal only of the technically qualified bidders will be opened after completion of technical evaluation stage. The date for opening of the financial proposal will be intimated accordingly to the technically qualified bidders well in advance.

9. Evaluation of Proposal

xxx xxx xxx

x. List of completed assignments of similar nature (Past Experience Details, (TECH 5) along with copies of contracts/work orders/completion certificate from previous Clients.

xxx xxx xxx

2. Technical Evaluation (2nd Stage)

Technical Evaluation // 12 //

(2ndStage): Technical proposal will be opened and evaluated for those bidders who qualify the preliminary evaluation stage. Detailed evaluation process as per the following parameters will be adopted for proposal evaluation:

Sr.                                                           Maximum
      Criteria
No.                                                           Marks

1     Experience of the Agency                                55 Marks

      Experience of establishment and
      operations     of    Tele    Medicine

Centers/Digital Dispensaries etc., for Govt. / Private organizations  More than 3 years and less 1.1 than 6 years: 10 Marks 25 Marks  More than 6 years and less than 9 years:

                15Marks
            More than 9 years: 25 Marks


       Number of telemedicine centers
       /digital     dispensaries      etc.,
       successfully     established   and
       operated       for      Government

organization/Private Organization / similar project implemented in 1.2 other states 30 Marks  More than 10 and less than 30 centres: 10 Marks  More than 30 centers and less than 60 centers: 20 Marks  More than 60 center: 30 Marks

2 Human Resources 5 Marks Manager (1)*

 Any Master's Degree (or equivalent) in MSC Nursing /Master's in Medical Social Work /Masters in Hospital Administration & Management / Healthcare Management /  5 Marks Master's in Public Health etc is  2 mark - for educational essential qualification  Experience of operations,  2 marks - for work experience 2.1 management of Hospitals / Clinics /Dispensaries/Healthcare  1 mark - for relevant experience in Project Management etc for implementation of similar projects in minimum of 3 years Trust / Government / PSU healthcare facilities

 (Annexure-VI)  Minimum of 1 years of experience in implementation of similar projects in Trust / Government /PSU healthcare facilities is desirable 3 Technical Presentation 40 Marks Presentation on Approach, 40 Marks 3.1 Methodology and Work Plan

1. Understanding of the // 13 //

Assignment and Issues /Challenges/Similar Case studies in Government Healthcare facilities (15 Marks) Technical Presentation

2. Approach, Methodology, Work Plan, Unique Selling Proposition/Additional Software /Features / Additional Services (25 Marks)

Total (1+2 +3) 100 Marks

1. The minimum qualifying Score is: 60 from 100 Marks i.e., 60% of Technical Weightage will be provided.

2. All the claims shall be mandatorily substantiated via submission of all the supporting photocopies of relevant documents as per TECH 5.

3. CV mentioned for the post of Manager is expected to be deployed full-time for a period duration of the project. If in any case replacement is needed, the CV of the replacing manager shall have the same or better qualifications and experiences as mentioned herein. The claims for the same shall be mandatorily substantiated via attachment of photocopies of educational documents, experience certificates, etc along with the technical proposal TECH 12.

4. Photocopies of work orders / experience certificates from the clients / agreement etc must be submitted as a proof for each assignment. No assignment should be repeated across various categories of evaluation parameters. Ongoing assignments will be considered for evaluation only if 6 months of the project period have elapsed.

7. In view of aforesaid provisions contained in

Clause-2 of RFP, the petitioner was required to submit

the list of completed assignments of similar nature (Past

Experience Details, TECH-5) along with copies of

contracts/work orders/ completion certificate/ experience

certificate from previous clients. Although the petitioner

is a partnership firm, as has been stated in the cause

title of the writ petition, it is contended that, it is a

wholly owned subsidiary of Glocal Healthcare Systems

Private Limited, which is a company engaged in the

business of providing health care services throughout // 14 //

the country in the field of digital dispensaries since

2010, and taking into consideration the experience

acquired by Glocal Healthcare Systems Private Limited,

the same should be computed in favour of the

petitioner. But that is not the requirement of the

conditions stipulated in the tender documents. Apart

from the same, under the said Clause-2 it is made clear

that any deviation from the prescribed procedures/

information/ formats/ conditions shall result in out-

right rejection of the proposal. Since the petitioner firm

has no requisite experience, as required in the RFP, the

experience gained by Glocal Healthcare Systems Private

Limited, which is a company, cannot be utilized in case

of the petitioner, as the petitioner is a partnership firm,

as has been stated in the cause title of the writ petition.

Therefore, the bid submitted by the petitioner was to be

rejected on that score.

8. As per Clause-8 of the RFP, the opening of

the proposal has to be done in presence of the

bidder/bidder's representatives at the location, date

specified in the Bidder Data Sheet, whereas sub-clause-

// 15 //

(x) of Clause-9 states about the list of completed

assignments of similar nature (Past Experience Details,

(TECH 5) along with copies of contracts/work

orders/completion certificate from previous clients,

which is required for preliminary evaluation of proposal

to determine whether the proposal complies with the

prescribed eligibility condition and the requisite

documents/information have been properly furnished

by the bidder or not. Then comes 2nd stage, i.e.,

Technical Evaluation under Sub-clause (1.1) of Clause-

2, which requires experience of establishment and

operations of Tele Medicine Centres/Digital

Dispensaries etc. for Govt./Private organizations and it

requires marks to be awarded basing upon year. It is

the admitted case of the parties that the petitioner is

banking upon the experience gained by the Glocal

Healthcare Systems Private Limited, a company of

which the petitioner is stated to be a subsidiary. As

such, the petitioner firm itself has no experience and

nothing has been placed on record to show that it has

got experience to be considered for technical evaluation.

// 16 //

9. Reliance has been placed, on behalf of the

petitioner, on the judgment of the apex Court in New

Horizons Limited (supra), paragraph-26 whereof reads

as follows:

"23. Even if it be assumed that the requirement regarding experience as set out in the advertisement dated April 22, 1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be home // 17 //

in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract where under some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company......"

On perusal of the above mentioned paragraph, it is

made clear that even if the requirement regarding

experience, as set out in the advertisement inviting

tender, is a condition about eligibility for consideration

of the tender, the Court did not find the basis for the

same and held that the said requirement regarding

experience cannot be construed to mean that the said

experience should be of the tenderer in its name only. It

is possible to visualize a situation, where a person

having past experience has entered into a partnership

and the tender has been submitted in the name of the

partnership firm which may not have any past

experience in its own name, that does not mean that // 18 //

the earlier experience of one of the partners of the firm

cannot be taken into consideration. Similarly, a

company, incorporated under the Companies Act,

having past experience may undergo reorganisation as

a result of merger or amalgamation with another

company which may have no such past experience and

the tender is submitted in the name of the reorganised

company, it could not be the purport of the requirement

about experience that the experience of the company

which has merged into the reorganised company cannot

be taken into consideration, because the tender has not

been submitted in its name and has been submitted in

the name of the reorganised company which does not

have experience in its name.

But the said judgment cited by the petitioner

is distinguishable, in view of the fact that the author of

the conditions is competent to explain the position and,

as such, this Court has no jurisdiction to interfere with

the conditions stipulated in the contract itself. This

Court has only jurisdiction to interfere with the decision

making process of the tendering authority to see // 19 //

whether it is reasonable, rationale, arbitrary and

violative of Article-14 of the Constitution of India in

exercise of power of judicial review. Nothing has been

placed on record with regard to the decision making

process of the authority concerned, rather the petitioner

has pleaded in the writ petition making grounds that

the action of the opposite parties are arbitrary and

unreasonable.

10. In Sterling Computers Ltd. v. M & N

Publications Ltd. (1993) 1 SCC 445, the apex Court

observed as under:-

"18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the 'decision-making process'. ... the courts can certainly examine whether 'decision-making process' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution."

11. In Tata Cellular v. Union of India, (1994) 6

SCC 651 : AIR 1996 SC 11, the apex Court, referring to

the limitations relating to the scope of judicial review of

administrative decisions and exercise of powers in

awarding contracts, held to the following effect:-

"(1) The modern trend points to judicial restraint in administrative action.

// 20 //

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative action. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. ... More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

The apex Court also noted that there are inherent

limitations in the exercise of power of judicial review in

contractual matter. As such, it was observed that the

duty to act fairly will vary in extent, depending upon the

nature of cases, to which said principle is sought to be

applied. It was further held that the State has the right

to refuse the lowest or any other tender, provided it tries

to get the best person or the best quotation, and the

power to choose is not exercised for any collateral

purpose or in infringement of Article 14.

// 21 //

12. In Air India Ltd. v. Cochin International

Airport Ltd. (2000) 2 SCC 617, the apex Court, while

summarizing the scope of interference as enunciated in

several earlier decisions, held as follows:-

"7. ... The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the 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 it 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 intervene."

13. The scope of judicial review has also been

taken into consideration elaborately in Jagdish Mandal

v. State of Odisha, (2007) 14 SCC 517. In paragraph-

// 22 //

22 of the said judgment, the apex Court held as

follows:-

"..............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."

Similar view has also been reiterated in

Michigan Rubber (India) Limited v. State of

Karnatak, (2012) 8 SCC 216 and Maa Binda Express

Carrier v. North East Frontier Railway, (2014) 3 SCC

760.

14. In Vidarbha Irrigation Development

Corporation v. M/s Anoj Kumar Agarwalla), (2020) 17

SCC 577, the apex Court, in paragraph-16 of the

judgment, held as under:-

// 23 //

"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."

15. In Afcons Infrastructure Limited v. Nagpur

Metro Rail Corporation Limited, (2016) 16 SCC 818,

the apex Court held that the constitutional courts are

concerned with the decision making process. 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.

16. In the instant case, as the opposite parties,

while disqualifying the technical bid of petitioner, have

acted in consonance with the terms and conditions

stipulated in the RFP issued under Annexure-1 dated

26.05.2023, and the petitioner, on the other hand, has // 24 //

not made out a case pointing out any error in the

decision making process of the tendering authority in

order to exercise the power of judicial review, this Court

is not inclined to entertain this writ petition.

17. In the result, therefore, the writ petition

merits no consideration and the same is hereby

dismissed. However, under the circumstances of the

case, there shall be no order as to costs.

                                                             (DR. B.R. SARANGI)
                                                                  JUDGE


            M.S. RAMAN, J.                  I agree.


                                                                (M.S. RAMAN)
                                                                    JUDGE


                           Orissa High Court, Cuttack
                           The 8th August, 2023, Alok




Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 08-Aug-2023 17:18:23