The main legal point established in the judgment is that the interpretation of tender clauses and the evaluation of bids should be deferred to the tendering authority, and judicial intervention is warranted only in cases of mala fides or manifest irrationality in the decision-making process.

JUDGMENT :

PRATEEK JALAN, J.

1. This writ petition concerns a tender floated by the first respondent, Oil and Natural Gas Corporation Ltd. (hereinafter, “ONGC”) for the design, engineering, construction, fabrication, installation and commissioning of various facilities (including a Central Processing Platform and Living Quarters and Utilities) at one of its offshore platforms. The petitioner, L&T Hydrocarbon Engineering Ltd. (hereinafter, “L&T”) is part of a consortium (with the fourth respondent, McDermott Asia Pacific Pvt. Ltd.) which participated in the tender. The second and third respondents, Afcons Infrastructure Ltd. (hereinafter, “Afcons”) and Sapura Fabrication SDN BHD (hereinafter, “Sapura”) formed another consortium. By way of this petition, L&T contends that the Afcons/Sapura consortium (hereinafter, “ASC”) was not technically qualified to participate in the tender, and its bid ought to have been rejected at the threshold.

2. The tender was issued on 24.11.2016, and amended on 06.04.2017 in accordance with circulars dated 01.03.2017 and 03.04.2017 issued by ONGC. Three parties (the petitioner’s consortium, ASC and one other bidder) participated. (Although the petitioner’s bid was initially not accepted, it was ultimately permitted to participate by virtue of an order of this Court dated 25.05.2018 in W.P. (C) No. 1429 of 2018.) By a letter dated 28.08.2018, ONGC stated that the petitioner’s consortium and ASC had been short-listed for opening of their price bids. This communication has been challenged by L&T in the present petition.

3. The stipulation of the tender documents relevant for the adjudication of this petition are referred to below:

(a) Clause 14.1 of the Instructions to Bidders:

“14.0 EXPERIENCE/CAPABILITY OF THE BIDDER

14.1 TECHNICAL Bidder is required to comply with the requirements of Section A-2 of Bid Evaluation Criteria at Appendix-A6 for this section. The bidder shall submit the documentary evidence in support of his experience/capability as required above along with technocontractual (Unpriced) bid.”

(b) Clause 23.1 and 23.2 of the Instructions to Bidders:

“23.0 EVALUATION

23.1 The Company wishes to finalize the award of work of the facilities covered under this Bidding Documents within a limited time schedule. ONGC expects bidders to confirm compliance to tender term, conditions & Specifications, which shall stand frozen after Pre-Bid Conference, failing which the Bids are liable to be rejected. Hence the bidders in their own interest are advised to submit their bids complete in all respects conforming to all terms and conditions of the bid document.

Bids shall be evaluated based on the information/documents available in the bid. Hence bidders are advised to ensure that they submit appropriate and relevant supporting documentation along with their proposal in the first instance itself. Bids not complying to the requirements of bid documents are liable to be rejected. Bidders are advised to fill up Appendix A-9 carefully and provide reference to all relevant documents given in their bid offer. Bidders are advised to note that the sub-contractors/agencies/barges listed in the bidder’s Bid, shall be evaluated in terms of the experience criteria stipulated in the BEC. Therefore, the bidders in their own interest are requested to select the subcontractors/agencies/barges conforming to the criteria stipulated therein. Prior to opening of price bids of short listed bidders, the acceptable subcontractors/agencies/barges shall be intimated to the respective bidders and the decision of Company shall be final. Any exception to this information shall render their offer disqualified and in such an event their bid bond shall be forfeited.

23.2 Apart from commercial and technical requirements set forth in the Bidding Documents, the evaluation of bids shall be carried out on the basis of Bid Evaluation Criteria at A