The main legal point established is that the rejection of a bid without providing reasons or a hearing does not violate natural justice if not required by the tender document. The court also emphasized the deference to the decision-making process of the employer and the interpretation of tender documents.

JUDGMENT

Rajiv Sahai Endlaw, J. - The petition, (i) impugns the order/communication dated 10th August, 2020 of the respondent IRCON International Limited rejecting, during technical evaluation by the constituted Committee, the bid of the joint venture of the two petitioners, for the reason "technically disqualified"; and, (ii) seeks mandamus, directing the respondent to declare that the petitioners are eligible to participate in the bid process and to allow the petitioners to participate in the bid process.

2. The respondent, on behalf of West Central Railway, on 17th March, 2020 invited bids for construction of Down Line Railway Grade separator running over New Katni Junction & Katni Murwara yards and comprising construction of Rail Viaducts on Pile foundation, composite steel girders and Deck Slabs, Open Web Girders, Retaining Walls, minor bridges, Earthwork & allied other civil engineering works in Katni District, Madhya Pradesh, for Katni grade Separator project of West Central Railway (Package-I), vide e-Tender document NIT No: IRCON/CO/KGS/Civil /DN/106.

3. The two petitioners namely (i) ISC Projects Pvt. Ltd.; and, (ii) Royal Infraconstru Ltd., on 8th June, 2020 formed a Joint Venture (JV) in the name and style of "ISC Projects Royal JV" for submission of the technical and financial bid for the above mentioned tender, with the petitioner no.1 ISC Projects Pvt. Ltd. being the lead member of the JV for intents and purpose of representing the JV with the "Employers", and so submitted the bid, claiming to be qualified therefor as per technical qualifications prescribed in the tender.

4. The grievance of the petitioners in this petition is, that neither any reason was assigned for holding the petitioners "technically disqualified" nor any hearing was accorded to the petitioners; the contention is that thus the action of the respondent of rejecting the bid of the petitioners is violative of the principles of natural justice, arbitrary and untenable in law. It is further the case of the petitioners that though the petitioners on 10th August, 2020 itself requested a clarification and reason for rejection of their bid but no reason was informed till the date of filing of the petition.

5. Having gone through the file, we did not find any of the terms and conditions of the tender, in response to which the petitioners had bid, to be requiring the respondent to give reasons for the rejection or to give an opportunity of hearing to those whose bids were being rejected. Rather we found Clause 21 titled "Right to accept any tender or reject all tenders" in Part E titled "e-Bid Opening and Evaluation" of Section III titled "Instructions to Tenderers", of the tender document to be expressly reserving unto the "employer/engineer", the right to accept or reject any tender without incurring any liability to the affected tenderers or any obligation to inform affected tenderer, the grounds for such action. We thus, on 14th August, 2020 when the petition came up before us for admission, enquired from the counsel for the petitioners, the right under which the petitioners claim a right to be informed reasons and to be given opportunity of hearing, of rejection/before rejection of their tender.

6. The counsel for the petitioners drew our attention to Annexures P-9 and P-10 to the petition, being copies of Office Order No.33/7/03 dated 9th July, 2003 and Office Order No.15/3/05 dated 24th March, 2005 of the Central Vigilance Commission (CVC). The former requires prequalification, evaluation/exclusion criteria etc. which the organisation wants to adopt, to be made explicit at the time of inviting tenders, so that the basic concept of transparency and interest of equity and fairness are satisfied and provides that acceptance/rejection of any bid should not be arbitrary but on justified grounds as per the laid down specifications, evaluation/exclusion criteria, leaving no room for complaints. The latter provides that notwithstanding the clause incorpo