The court emphasized the importance of interpreting tender eligibility criteria and the requirement for products to be available at the time of bid submission in a reasonable manner.

S.J. Vazifdar, J.

1. The petitioners have challenged the first respondent’s decision to consider respondent No.3 – HAL Offshore Limited as a qualified bidder for the tender in question; the decision of respondent No.1 to declare respondent No.3 as the L-1 bidder in respect of the said tender and the decision of respondent No.1 to permit respondent No.3 to satisfy the bid eligibility criteria by giving an undertaking to comply with the technical specifications stipulated in the tender before the supplies are made.

2. In December, 2012, respondent No.1 published a Competitive Bid E-Tender for “revamp of safety system at Neelam and Heera Wellhead platforms”. The product in respect of which tenders were invited is a DCP Skid Fire Firing System 150 Kg capacity for offshore installation. The tenders were invited in the two-bid system viz a technical bid and a commercial bid.

3. Petitioner No.1 and respondent No.3 submitted tenders. According to the petitioners, respondent No.3 failed to satisfy the eligibility criteria and was, therefore, not entitled to have its price bid opened.

4. Mr. Dada, the learned senior counsel appearing on behalf of the respondent No.3 firstly contended that petitioner No.1 did not meet the requirements stipulated in clause 2.3.1 of the specification for DCP system. The relevant portions of clause 2 and 4 read as under :

“2.0 GENERAL FEATURES

........

2.1 Acceptance Criteria

2.3.1 Contractor shall supply the complete dry chemical skid, which shall be of the type listed by Underwriters Laboratory, UL or Factory Mutual, FM, approved as a complete unit

........

4.9.1. Each dry chemical storage and discharge skid assembly consisting of one (01) dry chemical storage tank rated for 150 kilograms (+ 10 Kg) of potassium bicarbonate based powder. UL Listed/ FM approved quick opening nitrogen cylinder/s in quantity sufficient to meet performance and purge requirement. Necessary actuators, fittings and hoses for proper operation, and a common welded structural skid frame assembly with all components securely and permanently attached with lifting bar and lifting eye(s).”

Mr. Dada submitted that it was mandatory for the bidders to specify and to make available the products at the time of the bid. He submitted that if the products were not specified and available at the time of the bid, the tenderer must be held to be ineligible.

5. We will, for the purpose of this petition, presume that the above clauses are mandatory. We are, however, unable to accept Mr. Dada’s interpretation of the clause. The interpretation placed by the petitioners upon clause 2.3.1. does not necessarily follow on a plain reading thereof. The words “shall supply” indicate the fulfillment of the requirement of supply in future. If the petitioners interpretation was correct, the clause would have been worded differently. It would then have required the bidders to make available the certification for the products on the date of the submission of the tenders.

6. In any event, we are unable to hold that the first respondent’s interpretation of the clause is unsustainable and irrational warranting interference in a Writ Petition under Article 226. The view taken by the first respondent is certainly a possible view and in such matters we would not be inclined to substitute our view for that of the first respondent unless it is absolutely necessary. To say the least, this is not a case where only one interpretation of the clause is possible.

7. The other provisions of the specification for DCP system militate against the petitioners’ interpretation of the clause. Clauses 6.4 and 6.5 read as under :

“6.4 Inspection and Testing

6.4.1 The vendor shall carry out various tests as per applicable codes/standard. The test certificate shall be submitted to inspection Agency.

6.4.2 The inspection shall be carried out by an agency authorized by ONGC as described in NIT.

6.4.3 The OEM shall provide access to the Inspecting Agency for the Inspec