IMPORTANT POINTS
The financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants.
Courts cannot sit in appeal over financial consultant’s assessment.

Headnote:(a) Government contract – Price bid – Tender document and Term Sheet – Consultant analyzing the offers having regard to tender conditions – Analysis done before receipt of additional documents asked for by the owner in a transparent manner – Consultant considering entire material at the time of evaluation – Complex fiscal evaluation – Doctrine of judicial restraint – The financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants – Courts cannot sit in appeal over financial consultant’s assessment – Consultant’s report, held, neither ex facie erroneous nor perverse or absurd. (Para 36)
       (b) Constitution of India – Article 226 – Complex fiscal evaluation – Respondent, before finalization of the financial bid, submitting series of representations – Getting no reply, approaching High Court – Respondent could have done so at appropriate stage, not when bids were being considered – High Court should have exercised caution and restraint – Once the price bid was opened, a bidder could not have submitted representations on his own and seek a mandamus from the Court to take certain aspects into consideration. (Para 37)
       Facts of the case:
       The appellant, Tamil Nadu Generation and Distribution Corporation Ltd (for short ‘the Corporation’) vide notification dated 06.05.2013 floated a tender for setting up of two units of 660 MW Ennore SEZ Supercricitcal Thermal Power Project at Ash Dyke of NCTPS, Chennai wherein four bidders including the respondents herein participated. However, two bidders out of four were disqualified as they failed to meet the Bid Qualification Requirements (BQR) as a result of which bids of Consortium of Trishe Energy Infrastructure Services Private Limited (CSEPDI) and Bharat Heavy Electrical Ltd (BHEL) were taken up for consideration. Prior to the opening of the price bid, CSEPDI and BHEL submitted supplementary price bids on 05.02.2014. Price bids were opened on 05.02.2014 by the appellant in the presence of the representatives of the respondents, the qualified bidders.
       The subject tender was finalised and awarded to BHEL.
       The Division Bench of the High Court allowed the writ petition filed by the Respondent no. 1.
       Finding of the Court:
       High Court should have exercised caution and restraint.
       Result: Appeals allowed.

JUDGMENT :

Dipak Misra, J.

Leave granted.

2. The appellant, Tamil Nadu Generation and Distribution Corporation Ltd (for short ‘the Corporation’) vide notification dated 06.05.2013 floated a tender for setting up of two units of 660 MW Ennore SEZ Supercricitcal Thermal Power Project at Ash Dyke of NCTPS, Chennai wherein four bidders including the respondents herein participated. However, two bidders out of four were disqualified as they failed to meet the Bid Qualification Requirements (BQR) as a result of which bids of Consortium of Trishe Energy Infrastructure Services Private Limited (CSEPDI) and Bharat Heavy Electrical Ltd (BHEL) were taken up for consideration. Prior to the opening of the price bid, CSEPDI and BHEL submitted supplementary price bids on 05.02.2014. Price bids were opened on 05.02.2014 by the appellant in the presence of the representatives of the respondents, the qualified bidders.

3. The uncurtaining of facts would depict that the 1strespondent sent series of representations dated 16.06.2014, 17.06.2014, 01.07.2014 and 08.07.2014 to the appellant highlighting various aspects of the bid and the relevance of para (viii) of Clause 29.0 of the “Instructions to Bidders” (ITB) which also deals with the rejection of bids of the tenderer whose past performance/vendor rating is not satisfactory. Since the appellant paid no heed to the request made by the respondent No.1, it filed W.P. No. 19247 of 2014 seeking issue of a writ of mandamus to direct the appellant to consider the representations and comply with Tamil Nadu Transparency In Tenders Act, 1998 (for short, “the TTIT Act”). An undertaking was given before the learned Single Judge by the learned Advocate General that post-bid representations submitted by the respondent No.1 will be duly considered while finalizing the tenders and appropriate orders will be passed in accordance with the tender specifications and the TTIT Act and rules framed thereunder and in terms of the said undertaking, learned Single Judge vide order dated 31.07.2014 directed the appellant to consider and pass orders on the representations of the appellant herein after affording them an opportunity of personal hearing and directed that till such orders are passed, the tender should not be finalised.

4. Being aggrieved by the said order, the appellant filed writ appeal W.A. No. 1065 of 2014 before the Division Bench which, by judgment and order dated 19.08.2014, disposed of the writ appeal by modifying the order of the learned Single Judge only to the extent that affording of opportunity of personal hearing to the person was impermissible having not contemplated under the Rules (for short, “the rules”) and further permitted the respondent No.1 to submit additional documents raising all its objections and the appellant was directed to pass an order and communicate the same to the respondents, CSEPDI and BHEL. However, the Division Bench did not modify the direction of the learned Single Judge which was to the effect that till a decision was taken on representations of the 1st respondent, the bid shall not be finalised.

5. After the disposal of the writ appeal, the respondent No.1 sent its representation on 25.08.2014 along with necessary documents which was rejected by the appellant vide its communication dated 27.09.2014. The legal propriety of the said rejection was called in question by way of writ petition W.P. No. 26762 of 2014 seeking quashment of the same and further restraining the owner from taking steps to finalise the tender. During the hearing of the writ petition, a copy of letter dated 27.09.2014 awarding the contract to BHEL, respondent No. 2 herein, was brought on record. It was mentioned therein with regard to price negotiation meetings with the respondent No. 2. The respondent No. 1 sent a letter dated 1.10.2014 to the appellant, highlighting the arbitrariness, anomalies and

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2016 Supreme(SC) 838

IMPORTANT POINTSThe financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants. Courts cannot sit in appeal over financial consultant’s assessment.

IMPORTANT POINTS
The financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants.
Courts cannot sit in appeal over financial consultant’s assessment.