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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.SUDHAKAR AND K.B.K.VASUKI, JJ.
CSEPDI – Appellant
Vs.
Tamil Nadu Generation and Distribution Corporation Limited – Respondent
W.A.Nos.712 and 713 of 2015
Decided On : 7.09.2015
Indian Companies Act – Tamil Nadu Transparency in Tenders Act, 1998 – Tender Notification – First respondent vide tender notification dated 6.5.2013 floated a tender for setting up of two units of 660 MW Ennore SEZ Supercritical Thermal Power Project at Ash Dyke of NCTPS. In all, four bidders, including the appellant and third respondent (BHEL), participated. The two other bidders who participated in the tender were disqualified as they failed to meet the Bid Qualification Requirements. – The appellant is a Consortium of Trishe Energy Infrastructure Services Private Limited, a company registered under the provisions of the Indian Companies Act, and Central Southern China Electric Power Design Institute (CSEPDI), a power engineering, survey and design, and general engineering contracting company – Held, Even as per the Consultant’s Report the difference between the bid of the appellant and the third respondent is around Rs.71 Crores. – The difference on account of the reduction of the rate of interest from 7.2% to 6.2% as offered by the appellant would reduce the cost of the project by about Rs.1300 Crores. – If either the Commitment Fee of Rs.156.184 Crores or the interest on Management Fee and Guarantee Fee for the 36 month construction period is not loaded, certainly the cost of project will come down even further. – The said factors cannot be brushed aside by the TANGEDCO, as the above constitute overwhelming public interest, i.e., reduction of cost of the EPC-cum-Debt Financing project. – The TANGEDCO in the larger public interest that it serves ought to have considered the bid submitted by the appellant and that of the third respondent in order to ensure a level-playing field between the tenderers and fruitfully gain the benefit of lowest cost in the 2x660 MW Supercritical Thermal Power Project based on all relevant parameters contained in the two bids. – When a writ petition is filed challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. – The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. – Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene. – On a challenge to the award of a contract or rejection of a tender, by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. – Court is cognizant of the fact that the price offered may not always be the sole criterion for awarding a contract, and it is one among the relevant and important criteria. – The quality of work executed, the past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the bidders, their market reputation, the cost factor and so on, play an important role in deciding, to whom the contract should be awarded. – The decision making process should be transparent and open in finding the best bid considering all the relevant parameters and keeping in mind the public interest paramount. – When all these relevant factors have not been considered in the right perspective but more in breach, as observed above, certainly Courts in exercise of power of judicial review can interfere and Court is inclined to interfere with the proceedings impugned in the writ petitions – Appeals Allowed
R.SUDHAKAR,J.
The appellant/consortium, having met its waterloo before the learned Single Judge, has filed these appeals challenging the order dated 7.4.2015 passed in W.P.Nos.26762 and 27529 of 2014.
A THUMBNAIL SKETCH OF THE FACTS
2.1. The first respondent vide tender notification dated 6.5.2013 floated a tender for setting up of two units of 660 MW Ennore SEZ Supercritical Thermal Power Project at Ash Dyke of NCTPS. In all, four bidders, including the appellant and third respondent (BHEL), participated. The two other bidders who participated in the tender were disqualified as they failed to meet the Bid Qualification Requirements. The appellant is a Consortium of Trishe Energy Infrastructure Services Private Limited, a company registered under the provisions of the Indian Companies Act, and Central Southern China Electric Power Design Institute (CSEPDI), a power engineering, survey and design, and general engineering contracting company.
2.2. The bids of appellant and the third respondent were taken up for consideration by respondents 1 and 2. Prior to the opening of the price bids, the appellant and the third respondent submitted Supplementary Price Bids on 5.2.2014. The price bids were opened on 5.2.2014 by the second respondent in the presence of the representatives of the appellant and the third respondent.
2.3. Thereafter, as the tender process was hanging fire, the appellant sent its representations dated 16.6.2014, 17.6.2014, 1.7.2014 and 8.7.2014 to the first respondent, highlighting various aspects of the bid and the relevance of Clause 29.0(viii) of the Instructions to Bidders which deals with rejection of bids of the tender whose past performance/vendor rating is not satisfactory, more particularly, the poor track record and past performance of the third respondent, and also pointing out the wrong and improper calculations made contrary to financial statements submitted by the appellant.
2.4. As the first respondent did not pay heed to the request made by the appellant, it filed W.P.No.19247 of 2014 seeking issuance of a writ of Mandamus to direct respondents 1 and 2 to consider the appellant's representations dated 16.6.2014, 17.6.2014, 1.7.2014 and 8.7.2014, and take necessary action on the same in accordance with the tender terms and the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 (for brevity, “the TTIT Act”).
2.5. When the said writ petition was taken up for hearing, the learned Advocate General appearing for the first respondent undertook that post-bid representations submitted by the appellant will be duly considered while finalizing the tenders and appropriate orders will be passed in accordance with the tender specifications, TTIT Act and the Tamil Nadu Transparency in Tenders Rules, 2000 (for brevity, “the TTIT Rules”) Rules framed thereunder. Recording the said undertaking, the learned Single Judge, by order dated 31.7.2014 made in M.P.No.1 of 2014 in W.P.No.19247 of 2014, directed respondents 1 and 2 to consider and pass orders on the representations of the appellant herein after affording them an opportunity of personal hearing and till such orders are passed, it held that the tender should not be finalized.
2.6. Calling into question the order dated 31.7.2014 made in M.P.No.1 of 2014 in W.P.No.19247 of 2014, respondents 1 and 2 filed W.A.No.1065 of 2014. A Division Bench of this Court, by judgment dated 19.8.2014, disposed of the writ appeal and writ petition by modifying the order of the learned Single Judge only to the extent of holding that the rules did not contemplate personal hearing to the person who is objecting. The appellant was permitted to submit additional particulars/documents raising all its objections and the first respondent was directed to pass an order and communicate the same to the appellant and the third respondent. It is the specific plea of the a
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