WPMS/2010/2021
2021 Latest Caselaw 4530 UK

       IN THE HIGH COURT OF UTTARAKHAND
                           AT NAINITAL
          ON THE 12TH DAY OF NOVEMBER, 2021
                                 BEFORE:
       HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

            Writ Petition (M/S) No. 2010 of 2021

 BETWEEN:
        M/s GDS Infrastructure                              .....Petitioner
        (By Mr. Kurban Ali, Advocate)


 AND:
        State of Uttarakhand & others.                 ....Respondents
        (By Mr. T.S. Phartiyal, Addl. C.S.C. for the State of Uttarakhand)



                              JUDGMENT

Respondent no. 3 issued a notice on 31.07.2021 inviting tenders, inter-alia, for construction of Civil Judge's Court Building at Dhari, District Nainital. Only two bidders responded to the said notice, namely, petitioner and one Mr. Vinod Kumar Chauhan, however, technical bid of both the bidders was found to be non- responsive.

2. In this writ petition, petitioner has challenged the decision taken by Tender Evaluation Committee, dated 06.09.2021, whereby petitioner's technical bid has been found to be non-responsive on the ground that "the bidder has not submitted the certificate of work of similar nature i.e. building work".

3. It is the contention of the petitioner that petitioner has wide experience of civil construction work, and he has constructed boundary walls, retaining walls and also school building in District Pithoragarh and has also done minor construction/repair works in

Uttarakhand Judicial and Legal Academy and had also submitted certificate regarding such work with his technical bid, therefore, rejection of his technical bid on the ground that he has not submitted certificate of work of similar nature, is unsustainable.

4. Learned State Counsel was given time to get instructions. Today, on instructions, he submits that petitioner had not submitted any document to show that he had substantially or completely executed a contract of construction of non-residential building within last five years, therefore, according to him, petitioner's technical bid was rightly rejected, as he did not meet the requirement of Clause No. 2.4.2. He further submitted that as per own showing of the petitioner, he had executed contract of construction of boundary/retaining walls, repair works etc., but, there was no evidence to suggest that he had constructed a non-residential building of the required value, during last five years. He further submitted that scope of judicial review is very limited in these matters and the employer's decision regarding accepting or rejecting bid of a tenderer can be interfered with only when the decision making process is mala fide or is intended to favour someone.

5. Rejection of petitioner's bid is referable to Clause No. 2.4.2 of the instruction to bidders. The same is reproduced below for ready reference:-

2.4.2 Specific Construction Experience: (a) Contracts of Similar Size and Nature.

     Participation as contractor,    Must   meet   Must   meet   Not          Not          Forms
     in at least One contract
                                     requirement   requirement   Applicable   Applicable   given       in
     that was started and has
     been      substantially    or                                                         Section 4
     successfully      completed,
     within the last Three years,
     with a value of at least                                                                 EXP
     (inclusive of escalation*) of
     INR (Rs. 97.35 Lacs) (As
     per          G.O.        No.
     1197/II(2)/07-75
     (lkekU;)/2000             dt.
     24.02.2014) and that are
     similar to the proposed
     works. The similarity shall
     be necessarily based on
     the        physical     size,
     complexity,         methods,
     technology.

6. There is substance in the submission made by learned State counsel. As per condition contained in instruction to bidders, only such bidders are eligible who have substantially/completely executed a contract of similar work, during last three years. Similar work here means construction of non-residential building.

Petitioner had not produced any document of having executed a contract of similar nature during last three years, therefore, the decision taken by Tender Evaluation Committee of declaring his bid as non-responsive, cannot be faulted. Scope of Judicial review in these matters has to be minimal and this Court cannot sit in appeal over the decision taken by the employer. Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., reported in (2016) 16 SCC 818 has held as under:

"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 or 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 faulted or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.

12. In Dwarkadas Marfatia and Sons v. Port of Bombay it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was

confirmed in Jagdish Mandal v. State of Orissa8 as mentioned in Central Coalfields.

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.

14. We must reiterate the words of caution that this Court has stated right from the time when Ramanna Dayaram Shetty v. International Airport Authority of India 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 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"

7. Learned counsel for the petitioner then submits that in Clause 2.4.2 of instruction to bidders, there is a reference to Government Order dated 24.02.2014. He submits that in para 4 of the said Government Order, it has been provided that a bidder should have experience of completing work upto the value of 25% of the tender, in any one year of the last five years. According to him, petitioner has completed work upto the value of 25% of the tender, therefore, he meets the condition contained in para 4 of the Government Order, therefore, rejection of his technical bid is unjustified.

8. The said submission made on behalf of the petitioner is unacceptable for the simple reason that petitioner's bid was rejected on the ground that he has not submitted any certificate regarding execution of work of similar nature i.e. building work; therefore, even if, he had the required financial turnover as per the condition contained in Clause 2.4.2, then also his bid was liable to

be rejected for having no experience of executing similar work. Employer is the best judge of his requirements and if employer wants experience of a bidder in a particular field, then experience in other fields, howsoever wide, will not satisfy the condition of tender notice/instruction to bidders.

9. There is no challenge to the condition contained in Clause No. 2.4.2 of instruction to bidders and after submitting bid, petitioner cannot now complain that said condition is onerous than the one contained in para 4 of the Government Order dated 24.02.2014.

10. In such view of the matter, there is hardly any scope for interference with the decision taken by the Tender Evaluation Committee.

11. Learned State Counsel has apprised the Court that only two bids were received for the work in question, pursuant to the tender notice dated 31.07.2021 and both were found to be non-responsive, therefore, fresh tender notice was issued and bids received pursuant to fresh tender notice are being processed. Thus, he submits that the present writ petition has become infructuous.

12. Having regard to the aforesaid facts and reasons, this Court does not find any reason to interfere in the matter.

13. Accordingly, the writ petition fails and is dismissed.

14. There will be no order as to costs.

(MANOJ KUMAR TIWARI, J.) Navin