2019 Supreme(Ker) 366

IN THE HIGH COURT OF KERALA AT ERNAKULAM
HRISHIKESH ROY, A.K.JAYASANKARAN NAMBIAR, JJ.
M/s. Pushkarraj Constructions Pvt. Ltd. - Appellant
Versus
The Silppi Constructions and Contractors and Ors - Respondent
W.A.No.1359, 1374, 1375, 1376 of 2019
Decided On : 13-06-2019

IMPORTANT POINTS
A writ petition challenging the decision of a tendering authority ought not to be entertained unless all the eligible tenderers in the tender proceedings are made parties to the writ petition.ii. Interference with the decisions taken by a tendering authority must be only in exceptional cases where it is found that the decision taken is (a) pursuant to an unfair procedure adopted by the tendering authority or (b) where the decision is unreasonable in that it is one that no responsible authority acting reasonably and in accordance with relevant law could have reached or (c) where the decision is irrational, malafide or intended to favour someone.iii. While examining the rationality of a decision taken by the tendering authority, the Court must look at the matter from the point of view of the tendering authority and must take care not to substitute its views for that of the said authority. It has to bear in mind that the author of the tender documents is the best person to understand and appreciate its requirements and interpret its documents.iv. Even in cases where it is found that there is a procedural lacuna, if the decision taken by the tendering authority is seen to be bonafide and in public interest, the Court should refrain from interfering by recognizing that the principles of equity and natural justice do not operate in the field of commercial transactions.

Headnote:Constitution of India- Article 226- Even when some defect is found in the decision making process, the court must exercise its discretionary power under Article 226 with great caution and should exercise them only in furtherance of public interest and not merely on the making out of a legal point.

       Statement of facts:

       The estimated costs of the tenders were Rs.53 crores and Rs.72 crores respectively, and it as the case of the petitioner that while he had uploaded the competitive bid, based on the schedule of quantities, specifications and technical details of the works downloaded from the Military Engineer Services [MES] website, and complied with all the other conditions for submission of the bids, his technical bids were seen rejected by the tendering authorities on 28.3.2019, allegedly for the reason that in a Work Load Return of “SS Class” Contractors for the quarter ending September, 2018, that had been uploaded on the MES website on 20.3.2019, a sister concern of the petitioner Firm had been disqualified from submitting tenders in response to any Notice Inviting Tenders issued by the MES-Preferred an appeal, against the decision of the tendering authority rejecting its technical bids, within the period of three days that was stipulated for preferring appeals under the terms and conditions of the tender, the said appeal was dismissed by a laconic order bereft of any reasons as to why the technical bids of the petitioner stood rejected. It was impugning the said appellate order of the tendering authority that the writ petitions were preferred before this Court.

       Finding of the court

       Challenging the decisions of a tendering authority-Without arraying the other eligible bidders in the party array-Such a practice was not to be countenanced-Ineligible to submit a bid at all, ought to have been seen as one taken by the tendering authority who was the person best suited to understand the requirements of the tender- Unless the decision was shown to be malafide or taken with an intent to favour another person, both of which were not projected by the writ petitioner in his writ petitions, an interference with the decision of the tendering authority was not warranted

       When the Company concerned itself had not challenged the adverse remarks against it, it was not open to the petitioner to assail the said remarks in its writ petitions solely because it was negatively impacted by the same-A decision as to whether or not the technical bid was responsive, was one that was to be taken by the tendering authority, and this Court could not have substituted its views for that of the said authority.

       Result: Writ Appeals are allowed Writ petitions dismissed