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SUPREME COURT OF INDIA
T.S. THAKUR, C. NAGAPPAN, JJ.
M/s Siemens Aktiengeselischaft & S. Ltd. - Appellant
Versus
DMRC Ltd. & Ors. - Respondents
CIVIL APPEAL NO. 2068 OF 2014
(Arising out of S.L.P. (C) No.19233 of 2013)
Decided On : February 14, 2014
(1979) 3 SCC 489; (1994) 6 SCC 651; (1997) 7 SCC 592; (2007) 14 SCC 517; (2012) 5 SCC 443; (1999) 1 All ER 481– Relied upon
(1997) 1 SCC 738; (2000) 5 SCC 287 – Referred
(b) Government Contracts – Award of work – Validity – Illegality and irregularity – Even if there is no illegality, an irregularity can vitiate the process in certain situations – Irregularity alleged must find support from tender documents (Para 24)
(c) Government Contract – Terms of tender and transparency – Terms and conditions of bid not postulating validation of GEC values offered by bidders – Cannot be implied into tender process – Even then DMRC satisfying itself about achievability of the GEC values offered by bidders – Process transparent, fair and reasonable – No interference warranted. (Para 24, 25)
(d) Administration of Justice – Judicial Propriety – Issue regarding GEC already subjudice –Government should have placed all materials before Court and seek its pronouncement – Alternatively could seek court’s permission to review the process of evaluation by itself or through an expert Committee – Government of India appointing expert committee to resolve the issue – Amounts to parallel proceeding. (Para 26 to 28)
(e) Administration of Justice – Judicial Review – Expert Opinion – Court should not sit in judgment on scientific analysis relating to safety of project – Government/ authorities concerned taking a decision after due consideration of all viewpoints and full application of mind – Not appropriate for the court to interfere. (Para 29, 30)
(2003) 2 SCR 1085; (2004) 9 SCC 362 – Relied upon
(2011) 6 SCC 535; (2001) 1 SCC 582; AIR 1949 Patna 222; AIR 1955 AP 156; AIR 1970 SC 1821; AIR 1969 SC 30 – Referred
Facts of the case:
Delhi Metro Rail Corporation (‘DMRC’) has planned to implement Phase-III of the MRTS for Delhi. The project is financed with the help of a loan secured by the DMRC from Japan International Cooperation Agency (‘JICA’). As per the loan agreement, the procedure, inter alia, provides for submission of tenders to JICA for review, concurrence and analysis of bids by the DMRC and reserves with the JICA the discretion to convey its views regarding the analysis of the bids and the proposal for award of the works.
The DMRC invited sealed tenders in two parts (Technical & Price Bid) on International Competitive Bid basis for the design, manufacture, supply, testing, commissioning and training of 486 number of Standard Gauge Cars Electrical Multiple units at an estimated budget cost of Rs.3500 crores funded by JICA.
DMRC eventually received eight bids including one submitted by the appellant. The technical bids were opened on 18th September, 2012 whereupon only six of the bidders including the appellant were declared to be eligible.
The financial bids offered by these six bidders were then opened on 9th February, 2013 and the bid amount along with GEC values offered by each bidder announced by the DMRC. The price quotations of the six bidders found eligible
While the appellant was L-1 in the price bid, it went down to L-4 after GEC value was loaded to its price bid. On the contrary respondent No.2-HR who was L-3 in the price bid rose to L-1 position on account of its low GEC value in comparison to a higher GEC value offered by the appellant.
The contract was awarded to HR.
The appellant and Alstom Transport India Ltd. filed writ petitions which were dismissed.
Finding of the Court:
The Bidding process is transparent, fair and reasonable.
Result: Appeal dismissed.
JUDGMENT : -
T.S. THAKUR, J.
1. Leave granted.
2. A Division Bench of the High Court of Delhi has by a common order passed in Writ Petition (C) No.1853 of 2013 filed by the appellant and Writ Petition No.2615 of 2013 filed by Alstom Transport India Ltd. declined to interfere with the award of a contract for the supply of 486 Standard Gauge Cars Electrical Multiple Units meant for use in Phase-III of the Mass Rapid Transit System (‘MRTS’ for short) for Delhi and its extension corridors. The High Court has taken the view that the process of evaluation of the bids received from eligible bidders culminating in the award of a contract in favour of respondent No.2-Hyundai Rotem Company (‘HR’ for short) was transparent and did not suffer from any illegality, irregularity or perversity of any kind to warrant interference by it. The High Court held that the bidders were well aware of and had accepted the tender conditions which were free from any vagueness or uncertainty. The parameters of evaluation conditions were also held to have been applied uniformly to all the bidders under a procedure that was open, transparent and fair as required by law. The present appeal assails the correctness of that judgment and order. Alstom Transport India Ltd. & Ors.-Writ-Petitioners in connected Writ Petition No.2615 of 2013 have, however, remained content with the view taken by the High Court and have not chosen to appeal.
3. Respondent-Delhi Metro Rail Corporation (‘DMRC’ for short) has planned to implement Phase-III of the MRTS for Delhi to keep pace with the ever increasing traffic demands in Delhi. Phase-III of the MRTS, Delhi comprises metro corridors of Mukundpur-Rajori Garden-Dhaula Kuan – Maujpur - Gokulpuri and Janakpuri (West)–Munirka - Kalkaji - Kalindi Kunj - Botanical Garden - (Noida). The project, it is common ground, is financed with the help of a loan secured by the DMRC from Japan International Cooperation Agency (‘JICA’ for short). The loan agreement, inter alia, stipulates the bid procedure to be followed by DMRC. What is noteworthy is that the procedure, inter alia, provides for submission of tenders to JICA for review, concurrence and analysis of bids by the DMRC and reserves with the JICA the discretion to convey its views regarding the analysis of the bids and the proposal for award of the works.
4. In keeping with the requirements of the agreement between DMRC and JICA, the former invited sealed tenders in two parts (Technical & Price Bid) on International Competitive Bid (‘ICB’ for short) basis for the design, manufacture, supply, testing, commissioning and training of 486 number of Standard Gauge Cars Electrical Multiple units referred to earlier at an estimated budget cost of Rs.3500 crores funded by JICA. Pre-bid meetings were held to answer the queries, if any, raised by the bidders. The DMRC in the meantime issued as many as 9 Addenda which necessitated the change in the dates fixed for submission of bids to enable the bidders to formulate their offers and make their bids in accordance with the terms and conditions finally stipulated for the purpose. DMRC eventually received eight bids including one submitted by the appellant before us. The technical bids were opened on 18th September, 2012 whereupon only six of the bidders including the appellant were declared to be eligible. With the opening of the technical bids GEC values which the bidders were required to submit as a part of their technical bid and which were relevant and to a great extent critical for evaluation of the price bid under the applicable terms and conditions also became known to the bidders. The financial bids offered by these six bidders were then opened on 9th February, 2013 and the bid amount along with GEC values offered by each bidder announced by the DMRC. The price quotations of the six bidders found eligible were as under:
| Bidder | Grand Total in I | ||
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