2022 Supreme(Mad) 989

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Suresh Kumar, J.
R.T. E.T.I. Environtech Private Limited, Represented by its Authorised Signatory, Gandhinagar, Gujarat - Petitioner
Versus
The Government of Tamil Nadu Highways and Minor Ports Department, Secretariat, Rep. by its Principal Secretary and Ors. - Respondents
W.P.Nos.5965 of 2020, 5970 of 2020, 31065 of 2019 and 31068 of 2019 and W.M.P.Nos.7001, 7004, 7010 and 7011 of 2020 and W.M.P.Nos.31179 and 31186 of 2019
Decided On : 13-12-2022

Headnote:

TENDER - CONDITIONS - TAILOR MADE - SPECIFICATIONS - ARBITRARY - MALAFIDE - JUDICIAL REVIEW - SCOPE - INTERFERENCE - LOCUS STANDI - CONTRACT AWARDED - MASH TL-4 CERTIFICATION - TRIAL WORK - SAFETY MEASURES - INTERNATIONAL STANDARDS - INSPECTION - REDO WORK - DISMISSAL OF WRIT PETITIONS.

Fact of the Case:

The petitioner, a company engaged in manufacturing and supplying Safety Roller Barriers (SRBs), challenged the tender notifications issued by the second respondent, Superintending Engineer C&M, Coimbatore, for providing SRBs at various locations. The petitioner alleged that the impugned tenders were tailor-made to suit the convenience of a particular bidder, that the conditions imposed in the tender notification were arbitrary and violative of the provisions of the Tamil Nadu Transparency in Tenders Act, and that the award of contract to the fourth respondent was biased, arbitrary, unlawful, and violative of the provisions of the Act and the Rules. The petitioner also contended that the fourth respondent did not have the Mash TL-4 certification, which was a pre-condition for the supply of SRBs, and that the second respondent had permitted the fourth respondent to start the work even before obtaining the certification. The fourth respondent, in its counter-affidavit, stated that it had obtained the Mash TL-4 certification from Texas A&M Transportation Institute, Texas, United States of America, and that the installation made by it at the instance of the second respondent for a short distance was only a trial run or on trial basis. The second respondent, in its counter-affidavit, stated that the tender conditions were not tailor-made, that the fourth respondent was the only company in India to manufacture SRBs, and that it had obtained the Mash TL-4 certification. The petitioner filed additional affidavits to rebut the contentions of the respondents.

Finding of the Court:

The court held that the petitioner had locus standi to challenge the impugned documents in these writ petitions since it was a registered Class I contractor in the Tamil Nadu Highways Department and had come to the Court even to challenge the very specifications made in floating the tender by filing the first two writ petitions. The court further held that the specifications or conditions imposed in the tender document were not tailor-made to suit a particular product or company, as the fourth respondent had obtained the Mash TL-4 certification, which was an internationally acclaimed testing method for SRBs. The court also held that the fourth respondent was permitted to go ahead with the work of installation of SRBs even before the Mash TL-4 certification was produced, as the condition imposed under the tender document was that after awarding the contract, before starting the execution of the work, the Mash TL-4 should be obtained and produced by the successful tenderer and only after satisfaction of such certification, such tenderer would be permitted to go ahead with the work. The court, however, found that there were some corrosion in the metal barriers installed by the fourth respondent as trial basis, and directed the respondents to revisit the installation of SRBs on trial basis for 60 meters and to ensure the safety and steadiness with international specification and standard as per the Mash TL-4 test and then only that shall be permitted to be in operational.

Issues: (i) Whether the petitioner had locus standi to challenge the impugned documents in these writ petitions? (ii) Whether the specifications or conditions imposed in the tender document were tailor-made to suit a particular product or company? (iii) Whether the fourth respondent was permitted to go ahead with the work of installation of SRBs even before the Mash TL-4 certification was produced? (iv) Whether the installation of SRBs on trial basis for 60 meters met the international specification and standard as per the Mash TL-4 test?

Ratio Decidendi: (i) A person or entity who stands out of the tender process or fails to comply with the terms and conditions of the tender documents cannot acquire any right or interest much less actionable claim in respect of such tender process. (ii) The tender calling authority has the freedom to prescribe the conditions and specifications in the tender document, and the Court cannot employ its view as to which one would be the best condition that can be imposed or alternative condition whether can be imposed. (iii) The Court must be slow in interfering with the tender matters unless and until the tender conditions are per se illegal, arbitrary, shocks the conscience of the Court and has been put in out of sheer malafide. (iv) The Court has held that the tender conditions if it is taken up for interpretation, the Author is the best person to understand and appreciate its requirement. Therefore its interpretation should not be second guessed by a Court in Judicial Review.

Final Decision: The writ petitions were dismissed. The court directed the respondents to revisit the installation of SRBs on trial basis for 60 meters and to ensure the safety and steadiness with international specification and standard as per the Mash TL-4 test and then only that shall be permitted to be in operational. The court also directed the respondents to take action even to the extent of requiring the fourth respondent to redo the work by using the fresh manufactured SRBs, if necessary.