The authority of the Tender Inviting Authority to accept or reject bids, and the finality of its decision, as emphasized in 'Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking (BEST), 2023 SCC OnLine SC 671'.

JUDGMENT :

WP(C) No.1560/2023

1) Vide e-NIT/TLMD-VIII/TS/19 of 2022 dated 18.11.2022, the respondent No.1 invited tender for the following works:

“Design, Manufacturing, Supply, Erection, Testing & Commissioning of 2 x10 MVA, 132/33 KV Gas insulated sub-station (GIS) at Sumbal, District Ganderbal, including Design, Manufacturing, Supply, laying, Jointing/Termination, Testing & Commissioning of 33 KV 300 sqmm XLPE Power Cable from GIS Sumbal to Gagengeer (Z-Morh Tunnel).”

2) The petitioner-Joint Venture was one of the six respondents to the tender notice. It is stated that during scrutiny of the tenders, certain curable deficiencies were found in all the tenders submitted by six participants. Accordingly, the respective communications were sent to each of the six participants. The petitioner vide communication dated 23.02.2023 was informed by the respondent No.3 that specific construction experience of bidder in respect of GIS and cable package was not submitted by the petitioner and was accordingly instructed to furnish the requisite short fall documents by 01.03.2023 up to 3.00 pm, so as to enable the respondents to proceed further with the evaluation. The petitioner in response to the aforesaid communication, addressed a communication dated 28.02.2023 to the respondent No.3, stating therein that M/S Garima Enterprises, Ghaziabad, was the partner of the Joint Venture and their representatives were present in the pre-bid meeting held on 26.12.2022 in the office of Chief Engineer at Srinagar. It was also stated that the petitioner has also submitted an authorization and performance certificate from OEMs for GIS (M/S Hitachi Energy India Limited) and 33 KV Cable (M/S Universal Cables Limited) for the related works executed by the petitioner and also the undertaking that the OEM’s will make their technical and engineering staff fully available for supervision /erection and commissioning of the project. The petitioner-Joint Venture also enclosed specific and general experience of ‘M/S Garima Enterprises, Ghaziabad’ along with work done certificate and a copy of the Joint Venture Agreement. Thereafter, vide communication dated 20.03.2023 (e-mail), the petitioner-Joint Venture was intimated that it was found to be responsive during technical evaluation. Thereafter vide communication dated 23.03.2023, the petitioner-Joint Venture was informed that its bid has been admitted by the Committee and petitioner was asked to remain in touch with the Tender Inviting Authority. The Contract Committee in its meeting held on 12.05.2023, recommended that the matter be placed before the Board of Directors for approval. It is further averred that the petitioner-Joint Venture is unaware as to what transpired thereafter till 09.06.2023 and all of a sudden the Contract Committee, which had previously recommended the case of the petitioner for being placed before the Board of Directors for approval, reversed its decision and recommended that e-NIT dated 18.11.2022 be cancelled.

3) The petitioner has impugned the decision of the Contract Committee-1 bearing No.TLMD-VIII/TS/957-61 dated 09.06.2023, on the grounds that the Contract Committee had no authority to cancel the e-NIT dated 18.11.2022 when the Committee had decided to place the matter before the Board of Directors. It is also submitted that the decision to allot or not to allot the contract or to cancel the tender notice vests exclusively in the Board of Directors, which is the competent authority and no reason has been assigned or disclosed after the first meeting of the Contract Committee as to why the contract was directed to be cancelled by the said Committee, as such, the action of the Contract Committee is arbitrary, unreasonable and discriminatory. It is also urged that if the tender has been cancelled at the instance of some external agency, then in compliance to the principles of natural justice, the petitioner was entitled to be informed about any such interference by a stranger in the ten