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IN THE HIGH COURT OF DELHI AT NEW DELHI
JASMEET SINGH, VIPIN SANGHI, JJ.
AYESA INGENIERIA Y. ARQUITECTURA S.A.U. – Petitioner
Versus
RAIL VIKAS NIGAM LIMITED – Respondent
W.P. (C) No. 5868 of 2021
Decided On : 19-05-2022
Companies Act, 2013 - Companies Act, 1956 - Constitution of India, 1950 - Article 226 - Company - Project - Bid - Petitioner is a company incorporated under laws of Spain - Petitioner is engaged in business of design consulting and project management of projects including projects of urban mass transport - Petitioner submits that in a pre-bid meeting, a specific question was asked regarding execution of work relating to twin tunnel, to which respondent No. 1 - rather than giving clarification, merely referred to terms of revised RFP - Petitioner submitted its bid for Project respondent No. 1 declared technical marks awarded to five eligible bidders, wherein petitioner was awarded 9245.35 marks, instead of 9935.63 as self evaluated by petitioner - It is in this view of matter that present petition was filed as, according to petitioner, respondent No. 1 has wrongly considered Lucknow twin tube project as a single project, instead of two separate projects in terms of RFP.
Finding of the Court:
Concerned committees have awarded marks to both petitioner and respondent No. 2, against each technical feature of which assessment is to be made, in terms of tender in question - As a Court, sitting in judicial scrutiny of matters of grant of tender, Court is conscious of Court limitations and cannot step into shoes of Evaluation Committees - Therefore, marks awarded against each of feature, to either petitioner or respondent No. 2, cannot be called into question before Court , when no case of mala-fides or arbitrariness is made out - Court have no competence to evaluate marking process, and Court is not examining said aspect like an appellate authority - Respondent No. 1, in present case, appears to have abided by RFP, and has awarded work after evaluation and approval by 2 Expert Committees set up by Respondents - Court find no perversity mala-fide, arbitrariness or favouritism in Respondent No. l’s decision to award work to respondent No. 2 - In this view of matter, and for reasons stated above, Court is not inclined to grant any relief to petitioner.
Result: Petition dismissed.
JUDGMENT :
JASMEET SINGH, J.
1. The present petition has been filed by the petitioner seeking amongst others the following relief:
(ii) Issue a Writ/Order/Direction in the nature of mandamus and direct the Respondent to issue a fresh evaluation of final markings of the Petitioner by considering the Lucknow project of the Petitioner as two separate projects as per the terms of the RFP.
(iii) To quash the Letter of Award dated 16.05.2021 issued by the Respondent if “Yuksel Proje India - Tumas India JV” does not come out to be the most successful bidder after a fresh evaluation of the final markings of the Petitioner.”
2. The case of the petitioner is that the petitioner is a company incorporated under the laws of Spain. In accordance with the Companies Act, 2013, the petitioner has set up and is operating its branch at D-99, 4th Floor, Sector-2, Noida, Uttar Pradesh-201301. The respondent No. 1/Rail Vikas Nigam Ltd. is a company incorporated under the Companies Act, 1956 and is a wholly owned subsidiary of Ministry of Railways, Government of India.
3. The petitioner is engaged in the business of design consulting and project management of projects including projects of urban mass transport. On 02.12.2019 the respondent No. 1 issued a Request for Proposal (RFP) from experienced and reputed Consultants to provide General Consultancy cum Project Management Consultancy (GC cum PMC) Services for: Construction of Elevated and Underground Metro Railway works from Mominpur (Ex.) to Esplanade, approx. 5.30 Km in connection with Joka - BBD Bag Metro Corridor, in the state of West Bengal, India (hereinafter called the “Project”). The RFP was revised in June 2020.
4. The RFP was based on “Quality and Cost Based Selection” (QCBS) process. It is submitted that in QCBS, bids the successful bidder is selected on the basis of marks given for both - technical experience, as well as financial quote. As per the RFP, 80% weightage was reserved for technical bid score, and 20% weightage was reserved for financial bid score. The bidder getting the highest combined marks would be considered for award of the project. Since the scope of the Project included performance of GC Cum PMC, the bidders were required to possess the experience of both GC and PMC in past projects. Clause 5.7.2.2.3 of the RFP prescribed “Hurdle Criteria” under which bidders were supposed to possess past experience as both: (i) GC and (ii) PMC in similar projects.
5. The bidder was to be evaluated on a maximum of 10000 marks in accordance with Clause 5.7.2.3 of the RFP. Marks were to be awarded in the following manner:
(i) Experience of similar work (3000 for GC + 1000 for PMC).
(ii) Average Annual Consultancy Turnover (1500 marks), (iii) Qualification and Experience of Key Personnel (Expat) for consultancy services (4500 marks)”
6. The petitioner submits that in a pre-bid meeting, a specific question was asked regarding execution of work relating to twin tunnel, to which the respondent No. 1- rather than giving clarification, merely referred to the terms of the revised RFP.
7. The RFP also mandated the prospective bidders to submit a self-evaluation of marks for their respective technical experience in the prescribed format.
8. The petitioner submitted its bid for the Project on 30.07.2020. Having past experience, under Hurdle Criteria, the petitioner, in its bid, submitted the experience certificates of Lucknow GC and Panama-I projects, which are both GC cum PMC projects, and Panama-2 project which is a purely PMC project. As per self-evaluation, the petitioner claims that it should ha
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