TaxTMI 
TaxTMI 
2020 (6) TMI 807
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....istered contractor of the Govt. of Delhi. The petitioner states that it has participated in various bids floated by the respondent No. 2/AAI for different kind of works in various areas in Delhi and has also been awarded contracts by the respondent No.2/AAI for different kinds of work. 3. The petitioner states that the respondent No.2/AAI has brought out a notice inviting e-tender bearing tender ID No.2020_AAI_48378_1, calling the bidders to provide environmental support services (up-keeping) for the office complex at Rajiv Gandhi Bhawan SAP, New Delhi for Rs. 583.52 lakhs (Rs. 194.51 lakhs per annum) for a period of 3 years, extendable for further 1 year subject to satisfactory performance. 4. It is the contention of the petitioner that the criteria for technical bid evaluation prescribed in the NIT contains conditions which are not in conformity with the CVC guidelines dated 12.07.2002 and 07.04.2004. Conditions No.4 and 5 of the additional incorporated conditions in the e- tender which are under challenge, read as under:- "4. During the technical evaluation stage, each bidder shall be assigned different marks out of a total of 100 marks, as per the criteria specif....
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....ntract should not be < 02 cr over awarded duration. Self-attested copy of experience certificates for completed work/ongoing work issued by the Organisation awarding work shall be acceptable. References of clients are also requested. 04 Manpower on Roll 15 a) overall manpower on roll> 2000 -15 marks b) Overall manpower on roll between 1001-2000 10 marks c) Overall manpower on roll between 500-1000 05 marks d) Overall manpower <500 -2 marks Manpower on roll will be all employees on the books of the company on the date of release of the tender Duly CA audited statement of manpower wages/manpower roll for the previous four quarters to be submitted as part of the technical bid. For winning contractor, EPFO Challan/bank account statement in support of available manpower (duly submitted to EPFO0 in respect of the previous four quarter may be verified during award of contract. Inability to produce the same will lead to blacklisting of agency from future AAI MESS tenders 05 Quality Focus & Capability 10 OHSAS: 18001 (>1 yr) 10 marks QA certification should have been obtained at least a year before the date of the tender release. Certifi....
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....rks have been allotted for each of the criteria. Condition No.5 stipulates that a bidder must mandatorily secure a minimum of 70 marks out of 100 marks in technical evaluation in order to be a qualified bidder for being eligible for technical weightage and subsequently for opening of financial bids. These conditions have been challenged by the petitioner stating that they are arbitrary and contrary to the CVC guidelines and have been inserted only to eliminate competition and are therefore liable to be struck down. The petitioner relies on the CVC guidelines dated 17.12.2002. Paragraph 5 of the CVC guidelines which is relevant for the instant case, reads as under:- "5 i) Average Annual financial turnover during the last 3 years, ending 31st March of the previous financial year, should be at least 30 per cent of the estimated cost. ii) Experience of having successfully completed similar works during last 7 years ending last day of month previous to the one in which applications are invited should be either of the following:- a) Three similar completed works costing not less than the amount equal to 40 per cent of the estimated cost. Or b)....
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....r the respondent No.2/AAI. 9. The scope of judicial review in matters relating to tender are now well settled. In Jagdish Mandal vs. State of Orrisa reported as 2007 14 SCC 517, after considering the relevant case law, the Supreme Court had observed as under:- "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private....
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....ation the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamenta....
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....t case, a conscious decision has been taken to adopt the QCBS system in the larger public interest. The same cannot be said to be either arbitrary, mala fide or illegal, which calls for the interference of this Court in exercise of powers under Article 226 of the Constitution of India. Even otherwise, there is a justification by the respondent to adopt QCBS. It is the case on behalf of the respondent authority that earlier when work was awarded in 2012, during that period footfall was very less but there is tremendous growth in passenger's movement reaching to approximately 7.5 million per annum (projected for the year 2017 18 is 8.6 million per annum) and due to the growing traffic, Corporate Head Quarters of AAI has classified Ahmedabad Airport under QCBS category "A". It is also the case on behalf of the respondent authority that during the recent past authority has received numerous complaints pertaining to upkeeping of Terminals from the passengers and therefore, a conscious decision has been taken to adopt QCBS which as observed herein above cannot be said to be arbitrary. As observed herein above, as such it is for the employer to select the method and manner and even el....