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2017 Supreme(Del) 1008
IN THE HIGH COURT OF DELHI AT NEW DELHI
BADAR DURREZ AHMED & ASHUTOSH KUMAR, JJ.
M/S STATE CONSTRUCTION INTEGRATED WORKS, UNIQUE CONSTRUCTION (JV) – Appellant
Versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA & ANR. – Respondents
W.P(C) 1097 of 2017 & CM 5018 of 2017
Decided On : 27-03-2017
For the Appellant : Mr. Rakesh Khanna, Sr. Adv. with Mr. K.G. Sukhwani, Mr. P.K. Sukhwani, Mr. Anil K. Sharma, Ms. Shefali Jain and Ms. B. Kazim
For the Respondent: Mr. Sandeep Sethi, Sr. Adv. with Mr. Mukesh Kumar, Ms. Gunjan S. Jain, Mr. Rajiv Nayyar, Sr. Adv. with Ms. Namrata Kapoor Sharma and Mr. P.P. Kanwar
The main legal point established in the judgment is the importance of fair and transparent evaluation processes in awarding contracts, the need to balance public interest with technical eligibility requirements, and the authority's discretion to interpret and apply tender document clauses.
Headnote:
TENDER - Construction of 4 Lane Bridge across Varsova Creek - RFP Clause 2.2.2.2, 2.2.2.5, 2.2.2.6 - The court discussed the eligibility and qualification requirements of the bidder as per the RFP, focusing on technical capacity, financial capacity, and eligible experience. The court highlighted the interpretation and application of the RFP clauses, especially in relation to the experience of the bidder and the modification of eligibility criteria for the bidder. The court emphasized the importance of fair and transparent evaluation processes in awarding contracts and the need to balance public interest with technical eligibility requirements.
Fact of the Case:
The petitioner participated in a bid for the construction of a new 4 Lane Bridge across Varsova Creek. The respondent accepted the bid of respondent No.2, which was initially declared non-responsive by the technical evaluation committee.
Finding of the Court:
The court found that the decision to modify the eligibility criteria for respondent No.2 was based on logic and not actuated by malafide. The court emphasized the importance of fair and transparent evaluation processes in awarding contracts and the need to balance public interest with technical eligibility requirements.
Issues: The main issue was whether it was fair for the respondent to change the eligibility condition for respondent No.2 and whether such a decision was based on any rationale or for the sole purpose of accommodating respondent No.2 to the exclusion of others.
Ratio Decidendi: The court emphasized the need for fair and transparent evaluation processes in awarding contracts, the importance of balancing public interest with technical eligibility requirements, and the authority's discretion to interpret and apply tender document clauses.
Final Decision: The court dismissed the writ petition, vacated the interim order, and awarded no costs.
ASHUTOSH KUMAR, J.
1. The petitioner which had participated in the bid, the tender for which was invited on 18.10.2016 for construction of a new 4 Lane Bridge across Varsova Creek and its approaches with interchange from km. 496.100 to km 498.350 (approx. 2.250 Km) between Surat - Dahisar Section of NH-8 (new NH-48) in the State of Maharashtra, is aggrieved by the action of the respondent in accepting the bid of respondent No.2 for consideration when the tender of respondent No.2 was allegedly technically non-compliant and had, in the first instance, been declared to be non-responsive by the technical evaluation committee.
2. It would be necessary to refer to certain facts preceding the invitation of tender in which the petitioner and respondent No.2 had participated. For the first time, EPC tenders were invited for the same work referred to above on 04.09.2015, which tender notice was later cancelled as there were no tenderers. For the second time, the tenders were invited on Hybrid Annuity basis on 10.03.2016 in which the petitioner was the only tenderer and, therefore, his tender was not opened. On the third occasion, the tenders were invited on Hybrid Annuity basis on 05.05.2016 in which the offer of the petitioner was the lowest, but it was higher by 55.32% of the estimated cost. As a result, tenders were re-invited by EPC mode on 18.10.2016 in which the petitioner, respondent No.2 and another participated.
3. In order to appreciate the contention of the petitioner, it would be necessary to extract the relevant eligibility and qualification requirements of a bidder set out in the RFP.
4. 2.2.2 Qualification requirements of Bidders:
2.2.2.1 xxxx xxxx
2.2.2.2 Technical Capacity
(i) For demonstrating technical capacity and experience (the "Technical Capacity"), the Bidder shall, over the past 5 (five) financial years preceding the Bid Due Date, have received payments for construction of Eligible Projects, 0.1" has undertaken construction works by itself in a PPP project, such that the sum total thereof is more than Rs. 394.10 crore (Rs Three hundred ninety four crore and ten lakh only) (the "Threshold Technical Capacity").
(ii) Provided that at least one similar work of 50% of Estimated Project Cost Rs. 78.82 crore (Rs. Seventy eight crore and eighty two lakh only) shall have been completed from the Eligible Projects in Category I and/or Category 3 specified in Clause 2.2.2.5. For this purpose, a project shall be considered to be completed, if more than 90% of the value of work has been completed and such completed value of work is equal to or more than 50% of the estimated project cost.
2.2.2.3 Financial Capacity : The Bidder shall have a minimum Net Worth (the "Financial Capacity") of Rs. 15.76 crore (Rs. Fifteen crore and seventy six lakh only) at the close of tile preceding financial year.
2.2.2.4 In case of a Joint Venture:
(i) The Threshold Technical Capacity and Financial Capacity" of all the Members of Joint Venture would be taken into account for satisfying the above conditions of eligibility. Further, Lead Member shall meet at least 60% requirement of Bid Capacity, Technical and Financial Capacity required as per Clause 2.2.2.1, 2.2.2.2(i) and 2.2.2.3 and each of other/V members shall meet at least 30% requirement of Bid Capacity. Technical and Financial capacity as per Clause 2.2.2.1, 2.2.2.2 (i) and 2.2.2.3. For avoidance of doubt it is further clarified that the Joint Venture must collectively and individually satisfy the above qualification criteria.
(ii) For requirement of 2.2.2.2 (ii) one similar work of 50% of Estimated Project Cost should have been completed from the Eligible Projects in Category 1 and/or Category 3 specified in Clause 2.2.2.5 individually by any of the JV members as a single work.
2.2.2.5 Categories and factors for evaluation of Technical Capacity:
(i) Subject to the provisions of Claus
