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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Devashis Baruah, J.
Asian Energy Services (Formerly Known As Asian Oilfield Limited), Mumbai And Anr. – Petitioners
Versus
Oil India Ltd. and Anr. – Respondents
WP(C)/6503 & 6007 of 2021
Decided On : 09-02-2022
Constitution of India,1950 – Article 226 – Tender/Contract - Technical bid - Case is that geologically Kumchai structure which is a deep seated domal anticline trending NE-SW is located in extreme eastern part of upper Assam Basin - Presence of commercial hydrocarbon was established in said structure - Thereupon altogether 14 wells have been drilled so far in said area and out of which two wells were drilled for Hydrocarbon prospects and remaining 12 wells for Girujan and post Girujan prospects - Presently four wells are on production - All wells drilled in said structure are basically concentrated in south western limb of the anticline and entire north western limb remains unexplored for which large part of Kumchai structure still remains to be delineated and developed - As of now 11 development/appraisal locations have been released recently with seismic reference based on Kumchai/Kherem 3D Seismic Survey - As per the NIT the duration of contract was for 6 months from date of commencement of operation - Bid was required to be submitted in two parts i.e. technical bid and financial bid together - Financial bid would only be opened for those bidders who qualify in their technical bids- Whether a term of the NIT is essential or not is a decision taken by employer which should be respected.
Finding of the Court:
question which arises before this Court is as to whether bidder can be held to have successfully executed contract on acquiring experience as stated in said Clause or is it that contract on the basis of which bidder submits its experience has also to be successfully executed - Use of the words “successfully executed” in Clauses 3.1.2 (a) as well as Clauses 3.1.2 (b) cannot be ignored or treated as redundant or superfluous and which must give a meaning and necessary significance - Noticeably it may be mentioned that tendering authority has interpreted that the term “successfully executed” would mean that contract on the basis of which experience has been shown has been successfully executed - In view, this Court is of the opinion that the said allegations do not merit exercise of the power of judicial review - Lastly a faint but a shrilling contention was made that tender has been settled at an astronomically high rate which is almost 20 crores more than petitioners and as such public interest demands interference - An unsuccessful bidder who failed in the technical bid, his quota for the financial bid has no relevance - OIL in the instant case is the best judge to decide and having decided same to award contract to Respondent at the price it has quoted, this Court cannot sit on appeal over the same.
Result: Writ Petitions are dismissed
JUDGMENT :
Heard, Mr. U.K. Nair, the learned Senior Counsel assisted by Mr. B. Chatterjee, the counsel appearing on behalf of the petitioners. I have also heard Mr. S.N. Sarma, the learned Senior Counsel assisted by Mr. K. Kalita for Oil India Limited and Mr. K.N. Choudhury, the learned Senior Counsel assisted by Mr. D.J. Das, appearing on behalf of the respondent No. 2.
2. Both the writ petitions along with the Interlocutory Application registered as I.A. (C) No. 2190/2021 are taken up together for final disposal.
3. The brief facts of the instant case is that geologically the Kumchai structure which is a deep seated domal anticline trending NE-SW is located in the extreme eastern part of upper Assam Basin. Presence of commercial hydrocarbon was established in the said structure in the year 1987. Thereupon altogether 14 wells have been drilled so far in the said area and out of which two wells were drilled for Tipam Hydrocarbon prospects and the remaining 12 wells for Girujan and post Girujan prospects. Presently four wells are on production. In the year 2008, a volume of around 80 sq. kms of 3D Seismic Data was acquired covering the present Kumchai structure. All the wells drilled in the said Kumchai structure are basically concentrated in the south western limb of the anticline and the entire north western limb remains unexplored for which large part of the Kumchai structure still remains to be delineated and developed. As of now 11 development/appraisal locations have been released recently with seismic reference based on Kumchai/Kherem 3D Seismic Survey. In view of the presence of substantial balance recoverable reserve and the necessity to recover the remaining hydrocarbon reserve from the lesser drained area and to augment the production and enhance recovery from the area for both oil and gas, Oil India Ltd. (for short OIL). proposed for acquisition of 96 sq. km. (source coverage area) of High Density (HD) 3D Seismic Data in Kumchai area falling in the State of Arunachal Pradesh by hiring the services of reputed and competent service provider having required infrastructure and relevant experience of carrying out seismic data acquisition in similar terrain/areas. The area of the seismic survey pertains to hilly/trust belt/logistically difficult areas/foreland part/close to river bed areas etc with moderate to high vegetations cover and inaccessibility. The service provider is also required to deploy sufficient technical resources, skilled manpower and adopt terrain specific shot hole drilling technology (100% mechanized shot hole drilling rigs) to meet the objective of the survey within stipulated timeline of six (6) operating months starting from November 2021 onwards. With that object in mind, Oil floated a tender bearing No. CDH 6944P22 for hiring of services for acquisition of high Density (HD) 3D Seismic Data of 96 sq. kms in Kumchai area Arunachal Pradesh on 10/5/2021 (published in E-portal tender process). It is also mentioned that technical requirement and significance of the time bound execution of planned high density 3D exploration campaign in Kumchai is very high in terms of denser sampling towards obtaining geologically conformable sub surface image to contribute for appraisal of the field.
4. As per the NIT the duration of the contract was for 6 months from the date of commencement of the operation. The bid was required to be submitted in two parts i.e. technical bid and financial bid together on 24/6/2021. The financial bid would only be opened for those bidders who qualify in their technical bids. Although the tender documents stipulates various bid evaluation criterion, but as the instant petition relates to a dispute pertaining to the technical evaluation criteria, clause 3.1.2 the same is quoted herein below :-
(a) The Bidder must be incorporated in India ( A copy of Certificate of Incorporation issued by Registrar of Companies (ROC) should be submitted along with the technica
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