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2024 Supreme(Pat) 678
IN THE HIGH COURT OF JUDICATURE AT PATNA
K. Vinod Chandran, CJ, Partha Sarthy, J.
Adam Media and Recreation Private Limited - Petitioner
Versus
The State of Bihar through the Principal Secretary, Urban Development and Housing Department and ors. – Respondents
Civil Writ Jurisdiction Case No.11068 of 2024
Decided On : 17-09-2024
Advocate Appeared:
For the Petitioner:Mr.Avinash Shekhar, Advocate
For the Respondent:Mr. Lalit Kishore, Sr. SC Mr. R.K. Priyadarshi, Advocate, Mr.Siddhartha Prasad, Advocate Mr.Ayush Kumar, Advocate Mr.Kanishka Shankar, Advocate
Judicial review in tender matters is limited to cases of arbitrariness or bias; interference is warranted only in gross irregularities.
Headnote:
Government Contract – Qualification of 7th respondent under challenge who was earlier disqualified at the Tender Committee Meeting – As ruled by the Hon'ble Supreme Court, no judicial review in commercial matters can be carried out, unless a case of arbitrariness, mala fide, bias or irrationality is made out – There can be no adjudication of technical issues by Judges who do not have any such domain expertise and restraint should be practiced in technical commercial matters which would infer loss to the Public Exchequer – Interference in matters of tender with directions to re-tender, as far as possible should be refrained from unless something very gross or palpable is pointed out, since it involves further toll on the exchequer – In the instant tender, a gross and palpable infirmity insofar as the tendering authority having accepted documents after the disqualification of the bidder and having termed such documents to be already available in the tender documents; which was evaluated at the first instance before the disqualification was carried out – The contention that the documents uploaded or that of the hard copy, were illegible is not acceptable as there is absolute levity in the process of tender evaluation – The 7th respondent quoting far higher than the others is of no import to sustain the tender proceedings, especially when the proceedings has been found to be arbitrary, irrational and unfair, giving rise to an apprehension of bias; which would vitiate the process, even if the qualification made of a disqualified tender is on the purported reason of the financial gain being far more – Present tender is one generating revenue and if the financial bids were not up to the expectation of the authority, there is no mandate to accept it – The fact that it is a revenue augmenting tender, also reads interference with the tender process; which demonstrably was tainted – The Letter of Acceptance (LOA) granted to 7th respondent set aside enabling all the bidders to participate; unless disqualified on allegation of fraud, concealment or false statement, if there is a re-tender. (Paras 7, 15 to 17)
Tata Motors Ltd. vs. Brihan Mumbai Electric Supply & Transport Undertaking (BEST), 2023 LiveLaw (SC) 467 – Relied.
JUDGMENT :
K. Vinod Chandran, CJ.
The writ petitioner, a bidder in a tender floated by the official respondents, has challenged the qualification of the 7th respondent; who was earlier disqualified as per the Tender Committee Meeting on 26.06.2024 evident from Annexure-R7/C.
2. We heard learned Counsel Mr. Avinash Shekhar for the writ petitioner, learned Senior Counsel Mr. Lalit Kishore instructed by Mr. R.K. Priyadarshi for the official respondents; the tendering authority, Mr. Siddhartha Prasad, learned Counsel for the 7th respondent and Mrs. Kalpana, learned Counsel for the additional 8th respondent who is impleaded through the intervening application filed.
3. The learned Counsel for the petitioner after reference to Annexure-P6 in which the 7th respondent was clearly disqualified, refers to Annexure-P8, which is a print out of the website of the Government of Bihar, which indicates the subject tender issued by the Bihar Urban Infrastructure Development Corporation Limited (for brevity ‘BUIDCO’) to be pending as on 11.07.2024 whereas the Letter of Acceptance (for brevity ‘LOA’) has been issued on 05.07.2024 and the agreement signed on 25.07.2024. Further, a reference is made to the e-mails received by the petitioner produced along with the rejoinder filed, which too indicates that even as on 27.07.2024, the communication was that the evaluation cover-2 has been completed and the petitioner has qualified.
4. Responding to the submission made in the counter affidavit, it is pointed out that the Annexure P1, Request for Proposal (RFP) required the bidder to submit certified payment certificate of experience; which was not submitted by the 7th respondent leading to his disqualification, in the technical bid. The counter affidavit indicates that the documents were submitted while objecting to the disqualification, which is not permissible as per Clause 2.13.2. The factum of the disqualified bidder having been qualified in the technical bid was never informed to the other successful bidders, coupled with the stage of the tender shown on the website and the e-mails received; a subterfuge employed to clearly outwit the other qualified bidders. There is definitely collusion between the respondent-authorities and the 7th respondent in awarding the tender; asserts learned Counsel.
5. The learned Senior Counsel appearing for the BUIDCO, referring to the counter affidavit, would argue that there were no new documents submitted by the 7th respondent. When the 7th respondent was disqualified, an objection was filed which was directed to be verified by the Project Director. The Project Director on verifying the same found that the certified payment certificate of experience was available in the uploaded tender of the 7th respondent, but the hard copy submitted earlier was not legible. It was hence the 7th respondent was qualified.
6. The learned Counsel for the 7th respondent also vigorously argued that in the objection raised by the 7th respondent, it was specifically pointed out that the certificates which were said to be absent, were available in the tender document. Hard copies were produced along with the objection also; which on verification was found to be available in the tender document by reason of which the 7th respondent was qualified. Both the BUIDCO and the 7th respondent argued that the quote of the 7th respondent was far above the quote of the petitioner. Learned Counsel for the 8th respondent contented that they were the second highest tenderer and when the 7th respondent is disqualified, the tender has to be awarded to the 8th respondent.
7. We have anxiously considered the rival contentions based on the principles laid down by the Hon’ble Supreme Court in Tata Motors Limited vs. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and Others reported in 2023 LiveLaw (SC) 467; relied on by BUIDCO. The Hon’ble Supreme Court has declared that no judicial review in commercial matters can be carried out, unless a case of
