TaxTMI 
TaxTMI 
2016 (10) TMI 1082
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....he respondent had also issued "Instructions To Bidders" (ITB) which contain clauses as to how the proposal shall be conducted. Clause 6.3.1 of ITB deals with Preliminary Examination of Techno-Commercial Proposals. We think it appropriate to reproduce the same:- "6.3.1 Preliminary Examination of Techno-Commercial Proposals: (a) OWNER will examine the Project Proposals to determine whether they are complete, whether required securities have been furnished, whether the documents have been properly signed and whether the bids are generally in order. (b) Prior to the detailed evaluation, OWNER will initially determine whether each Techno Commercial Proposal is of acceptable quality, is generally complete and is substantially responsive to the bidding documents. For purposes of this determination, a substantially responsive Proposal is one that conforms to all the terms, conditions and specifications of the bidding documents without material deviations, objections, conditionalities or reservations. A material deviation, objection, conditionality or reservation is one (i) that affects in any substantial way the scope, quality or performance of the contract; (ii)....
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....at clause 7.1.2(a) can be from same mine or different mines including the mine considered to meet qualifying requirement at clause 7.1.2(b)." 4. At this stage, it is necessary to refer to Notes appended to Clause 7.3.3 that deals with route-3. Notes are as under:- "i. The word "operated" means that the Bidder should have performed the necessary activities of drilling, excavation, hauling etc. on its own or through sub-contracting. ii. The word "developed" means that the Bidder should have performed the necessary activities of Land Acquisition/assisted in Land Acquisition, Statutory clearances/assisted in Statutory clearances and carried out 'Infrastructure development' on its own or through sub-contracting." 5. Chapter 9 of the ITB deals with Evaluation Methodology for Techno- Commercial Proposal (Qualification Proposal and Technical Proposal). Clause 9.1 deals with Evaluation of Qualification Proposal and Clause 9.2 deals with Evaluation of Technical Proposal. They read as under:- "9. Evaluation Methodology for Techno Commercial Proposal (Qualification Proposal and Technical Proposal) 9.1 Evaluation of Qualification Proposal: The ....
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....ements of NTPC. 9.3.2 To ensure effective evaluation of Technical Proposals the Bidders shall provide the necessary details as specified in Clause 8.4. The Technical evaluation will be for evaluating whether the Technical Proposal of the Bidder meets the following criteria. (a) Time Schedule to Achieve First Year Coal Production Target - NTPC shall evaluate the PERT chart submitted by the Bidder, to determine its completeness; reasonableness; and achievability. (b) Adequacy of the Equipment Plan - The Bidder shall submit an equipment plan giving details of the equipment that shall be used by the Mine Operator to provide Mining Services which shall be not less than the Minimum Equipment to be deployed as specified by NTPC at Schedule 6 of Project Agreement. NTPC shall evaluate the adequacy of equipment to meet the criteria imposed by NTPC in terms of quantity of production, quality of coal produced etc." [emphasis supplied] 7. The controversy in the instant case basically pertains to whether the appellant meets the qualification criteria as provided under the heading Technical Criteria that occurs in Clauses 7.1 and 7.2 of QR. To appreciate the....
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....ITB: It is observed in the Contract Agreement dtd. 11.02.2014 submitted by the bidder in support of meeting qualifying requirement for Lignite project Mata No Madh, Kutch, Gujrat that the necessary activity of drilling as per stipulations of QR (sr.no. i of Notes) is not mentioned. The same may please be clarified with supporting documents. (ii) Against QR requirement of Clause 7.2 of ITB: Details of Other non cash expenses in Million for calculating Annual Cash Accrual for three year viz. 2013-14, 2014-15 & 2015-16 2.0 It is requested that the requisite information along with necessary documents be furnished to us at the earliest, preferably by 24.05.2016. 3.0 It may please be noted that seeking the above clarifications should not be construed that the bid submitted by you is considered techno commercially responsive and/or meeting the Qualification requirements (QR)." 9. The response that was given by the appellant on 21.5.2016 is to the following effect:- "A) Para 1.0 (i) of your above letter against QR of Clause 7.1.2 of ITB: We are attaching the followings: a) A certificate from GMDC (client of our Lignite Project at Mata No Math....
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....as been awarded to M/s. Montecarlo Limited, having registered office at 7^th Floor, Shilp Building, Nr. Municipal Market, C.G. Road, Navrangpura, Ahmedabad - 380009, Gujarat, India. Name of Work: Turnkey Mining Contract involving Overburden/Inter burden removal, Excavation and/or loading of Lignite from mines face and ancillary activities at Lignite project, Mata No Madh.: Name of Contractor M/s. Montecarlo Limited LOI No. GMDC/LP/13306/13-14 Dated: 15/01/2014 Estimated Cost/Contract Value 663.04 Cr. Awarded Quantity Over Burden (1109.00) Lac CUM Lignite (148.00) Lac MT Contract Period 28.01.2014 to 27.01.2019 The scope of Project is to carry out mining operation on Turnkey basis comprising of removal of over burden, inter burden and lignite and/or loading from mines faces using hydraulic showel and dumper combination and other activities like Mine Planning, Quality control, Drilling, Ripping, Dust suppression, Nala Diversion, preparation of Garland drain, dewatering of Monsoon and seepage water, preparation and monitoring of haul road for better hauling etc. as required to complete the mining process. ....
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....decision taken by the owner was correct and did not adversely affect public interest but subserved the public purpose. Being of this view, the High Court dismissed the writ petition. Hence, the present appeal by special leave. 13. We have heard Mr. P. Chidambram and Mr. Harin P. Raval, learned senior counsel with Mr. Sandeep Singh, learned counsel for the appellant and Mr. Vikas Singh, learned senior counsel with Mr. Ankit Jain, learned counsel for the respondent. 14. The dispute and the dissention between the parties rest on how the Chapter 7 (QR) of ITB that contains Clause 7.2 that deals with technical criteria is to be understood. We are not really concerned with Clause 7.1. The centrality of controversy hinges on the interpretation to be placed on Clause 7.1.2. It is submitted by Mr. Chidambram, learned senior counsel appearing for the appellant that the appellant satisfied the condition as postulated in the QR under Clause 7.1.2 (a) and Clause 7.1.2 (a) stipulates that 23 Million BCM of aggregated volume of overburden and/or coal/lignite from a maximum of seven open cast mines of coal/Lignite, in any year and clause 7.1.2. (b) lays down that at least 11.5 Million BCM of....
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....of mining services. Clause 5 deals with the Mine Operations. We think it appropriate to reproduce Clauses 5.1, 5.9 and 5.10 of the same:- "5.1. The Mine Operator shall construct and operate the Site in accordance with the following scope: (a) Plan the mine (Site), its development andconstruction (b) Strip OB and store such OB on dumps (c) Mine and extract coal in accordance with therequirements of Owner (d) Make provisions for HEMM, other mining machinery and its effective maintenance (e) Implement, and comply with EMP and environmental clearances; (f) Construction, maintenance and operation of minede watering plant, sump, and garland drains with de-silting provisions (g) Construct and maintain all access ways and haulroads (h) Arrangement and use of explosives, as per Indian Explosives Act (i) Drilling and blasting (j) Construction and maintenance of wokshops, stores etc as per the requirement. (k) Construction, Operation and maintenance of complete power supply system. (l) Mine illumination as per prevalent laws (m) Arrangement of petrol/diesel, oil and lu....
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....he mining area. No claim for lack of knowledge of the site conditions shall be allowed. (f) Reasonable efforts shall be made to keep coal clean and free from soil, overburden, rock, clay, parting bands, steel, stones, timber, rags, equipment parts or any other deleterious material. (g) The Mine Operator shall ensure the quality of the coal is not affected by its mining methods which cause coal ash to rise above the target levels presented in AAPP. (h) Water in the pit shall be kept to a minimum. (i) Fires or hot spots in the coal shall be handled expeditiously and not transported to the crusher. The Owner shall be notified of any significant occurrence. Oxidized coal shall be treated as Overburden for compensation purposes. (j) Any equipment repairs on the coal bench shall be cleaned after use to prevent contamination. (k) All equipment shall undergo pre shift inspections including loose bucket teeth or other parts. (l) The Mine Operator shall be responsible to provide equipment to suit the varying thickness of the seams and partings which must be mined. (m) The Owner may instruct the Mine Operator to maintain ....
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....y GMDC in favour of the appellant and the documents filed by the appellant. The High Court has considered the documents and opined that the documents filed in support of the QR are substantially inadequate. Adverting to the facet of drilling, the writ court has opined that there is specific use of the words "drilling for the purposes of blasting". It is urged by Mr. Chidambram and Mr. Raval, learned senior counsel that in the absence of a definitive prescription, the court cannot add an attribute or quality component to the qualifying clause. In this regard, we may usefully refer to certain authorities. In Sterling Computers Limited v. M/s M & N Publications Limited & Ors (1993) 1 SCC 445, the Court has held that under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. It has also been observed that by way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on....
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....ench, after referring to series of judgments has culled out certain principles which include the one that where a decision has been taken purely on public interest, the court ordinarily should apply judicial restraint. 22. In Michigan Rubber (India) Ltd. (supra) the Court referred to the earlier judgments and opined that before a court interferes in tender or contractual matters, in exercise of power of judicial review should pose to itself the question whether the process adopted or decision made by the authority is mala fide or intended to favour someone or whether the process adopted or decision made is so arbitrary and irrational that the judicial conscience cannot countenance. Emphasis was laid on the test, that is, whether award of contract is against public interest. 23. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. 2016 (8) SCALE 765 a two-Judge Bench eloquently exposited the test which is to the following effect:- "We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts mu....