TaxTMI 
TaxTMI 
2023 (11) TMI 1330
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....r. Ramadhar Singh, GP 25 assisted by Mr. Upendra Prasad Singh, AC to GP 25 CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) In the instant writ petition, petitioners have prayed for the following relief/reliefs: "a. For quashing and setting aside the minutes of meeting of the Technical Committee (Respondent No. 3) dated 22.11.2022 ("impugned order") issued on 28.11.2022 as contained in Annexure P/1, by which the Petitioners have been held to be disqualified in technical bid in the most arbitrary manner, contrary to principles of natural justice, illegally as well as having without jurisdiction. b. For directing the State Health Society, Bihar (Respondent No. 2) to declare the petitioners as technically qualified and consequently open their financial bid in relation to the Notice Inviting Tender (NIT) bearing reference no. 01/SHSB/PPP(AMBULANCE)/2022-23. c. For issuing appropriate orders restraining the respondent authorities from opening financial bid and handing over the work order (in relation to the tender in furtherance of Notice Inviting Tender (NIT) Reference no., 01/SHSB/PPP(Ambulance)/2022-23 to any of the bidders until the p....
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....dation works with marginalized section of the society in areas like healthcare, emergency services, community mobilization and participatory management. It is providing various kind of services through different projects in the States of Bihar, Jharkhand, Chattisgarh, Madhya Pradesh, Delhi and Rajasthan. 4. Petitioner No. 3 is the Consortium of the petitioner Nos. 1 and 2. Petitioner No. 3 was formed to participate in the tender issued by the State Health Society, Bihar (hereinafter referred to as 'Society') with reference to 01/SHSB/PPP(AMBULANCE)/2022-23 (hereinafter referred to as 'the tender') for selection of the agency for operationalization and management of fleet of ambulances and mortuary vans through Integrated Centralized Call Center in the State of Bihar under Public Private Partnership (hereinafter referred to as 'PPP'). These three petitioners are questioning the validity of the proceedings of meetings dated 22.11.2022 by which the technical disqualification of the petitioner No. 3 was notified in the website on 28.11.2022. 5. It is necessary to take note of the following dates and events: S. No. Dates Events 1. 21.04.2017 In the year 2016, fou....
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....e raised certain objections on the petitioners' eligibility. In this regard Society sought a clarification from the petitioner - Consortium. 15. 21.11.2022 Petitioner - Consortium filed their reply along with number of documents. 16. 09.11.2022/ 22.11.2022 Sammaan Foundation - petitioner No. 2 sought for action in the light of earlier representations while addressing to the Society respondent. 17. 22.11.2022 Technical Committee disqualified the petitioners in the technical bid. 18. 30.11.2022 Petitioners had submitted for reconsideration of their claim with reference to rejection of their technical bid. 19. 30.11.2022 Respondent - Society informed the Ziquitza Health Care Ltd, Mumbai - respondent No. 6, M/s GVK Emergency Management and Research Institute, Telangana and M/s Pashupatinath Distributors Private Limited, Patna - respondent No. 4. 20. 09.11.2022/ 22.11.2022 Sammaan Foundation - petitioner No. 2 sought for action in the light of earlier representations while addressing to the Society respondent. 21. 02.12.2022 EMRI (GREEN) Health Services submitted objection against fourth respondent to ....
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.... no mandatory clause insofar as furnishing of certain materials like notes from the Audited Balance Sheet, therefore, rejection of bid or disqualifying the petitioner - Consortium in the technical bid stage is arbitrary and illegal. Moreover there are no such instructions to the bidders. On this ground, impugned action of the respondent - Society is liable to be set aside. 8. Learned senior counsel for the petitioners further submitted insofar as questioning the validity to declare fourth respondent's bid application responsive that it was not in order and consequently it being treated as L1 and therefore award of work to it was wrong and incorrect. On this issue he has contended that fourth respondent did not fulfill the eligibility criteria i.e., Clause 2.2 insofar as in not meeting the criteria of annual turnover of INR 100 crores for each of the year - FY 2018-19, FY 2019-20 and FY 2020-21. 9. It was further submitted that fourth respondent has not fulfilled yet another eligibility criteria i.e. Clause 2.3 read with Annexure - C to the tender - assignment of similar nature being successfully completed by it. It is submitted that the fourth respondent is lacking in experie....
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....er's technical bid is on non-existing ground, in other words, eligibility criteria under Clause 2.2, there is no specific instruction to the bidders to the extent that Audited Balance Sheet must contain notes of the balance sheet. In the absence of specific instruction to the respective bidders to produce material information out of Audited Balance Sheet, petitioner/bidders are not expected to produce the same. (ii) B.S.N. Joshi & Sons Ltd vs. Nair Coal Services Ltd. & Others reported in 2006 11 SCC 548, Paragraph No. 66 (i) to (vii) and No. 69 reads as under: "66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under: (i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in rela....
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....e employer may be said to have a general power of relaxation in that behalf. Once such a power is exercised, one of the questions which would arise for consideration by the superior courts would be as to whether exercise of such power was fair, reasonable and bona fide. If the answer thereto is not in the negative, save and except for sufficient and cogent reasons, the writ courts would be well advised to refrain themselves in exercise of their discretionary jurisdiction" (iii) Dutta Associates Pvt. Ltd vs. Indo Merchatiles Pvt. Ltd & Ors reported in (1997) 1 SCC 53, relevant Paragraph Nos. 4 to 8 reads as under: "4. After hearing the parties, we are of the opinion that the entire process leading to the acceptance of the appellant's tender is vitiated by more than one illegality. Firstly, the tender notice did not specify the "viability range" nor did it say that only the tenders coming within the viability range will be considered. More significantly, the tender notice did not even say that after receiving the tenders, the Commissioner/Government would first determine the "viability range" and would then call upon the lowest eligible tenderer to make a counte....
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....n supplying the same at such a low rate as Rs 9.20 for such a long period. It may be relevant to note at this stage the circumstances in which the appellant volunteered to supply at the said rate. Indo Mercantiles, the respondent herein, filed the writ petition and asked for an interim order. The learned Single Judge directed (vide Order dated 2-6-1994) that while Dutta Associates (appellant herein) shall not be given the contract, he "shall be allowed to execute the contract at the lowest quoted rate which is stated to be Rs 9.20 by the writ petitioner. Respondent 3 (Dutta Associates) states that the lowest quoted rate is Rs 11.14. If the lowest quoted rate is Rs 9.20, it is that rate at which the contract shall be given to Respondent 3". It is pursuant to the said order that the appellant-Dutta Associates has been supplying rectified spirit @ Rs 9.20 per LPL since June 1994 till October 1996. The said order did not compel the appellant (Respondent 3 in the writ petition) to supply at the rate of Rs 9.20p. If that rate was not feasible or economic, he could well have said, 'sorry'. He did not say so but agreed to and has been supplying at that rate, till October 1996. It is equall....
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....sioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated herein above, are more fundamental than the third ground upon which the High Court has allowed the writ appeal. 6. Before parting with this matter, we must also say that we have not been able to appreciate a particular observation of the Division Bench. In para 12 of its judgment, it said: "In a matter like supply of spirit to warehouse, offer of low or high rate does not affect the government revenue. The more the profit earned by the supplier, the more sales tax can be levied by the Government." We find it difficult to understand how the acceptance of a tender at a high rate does not affect the government revenue. Secondly, we find it yet more difficult to understand the observation that more profit the supplier earns, the more sales tax will the Government realise. Sales tax is not linked with profit. It is linked to the sale price and we see no logic in the Government paying higher rate at a subst....
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....ted 15.06.2022 ceased with effect from 21.06.2022, the date on which petitioners' bid was rejected. 12. It is further submitted that rejection of the petitioners' bid at the technical bid stage is in order. The reasons for rejection of petitioners' technical bid are that petitioners failed to furnish relevant materials which has been quoted in the balance sheet like notes. In this regard, he has cited Section 3(i) read with Section 129(1) and explanation of the Companies Act, 2013 requires that Column No. 2 note is essential. In not furnishing Column No. 2 - note of the Audited Balance Sheet on behalf of petitioners for the years FY 2018-19, FY 2019-20 and FY 2020- 21, the petitioners bid application is defective, in other words deficiency is in not furnishing complete records in the light of Clause 2.2, eligibility criteria for bidders read with mandatory requirements. 13. It has been further submitted that the petitioners have made certain allegations relating to leaking of information with reference to e-mail sent by the petitioners to members of technical committee on 29.06.2022. Thereafter, the same was communicated to the fourth respondent through administrative officer....
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....art from the above certificate to be provided by each of the partners, the consortium shall also submit: a) Board resolutions for individual partner(s) including lead partner in the consortium, as per format 'Annexure-E' b) Memorandum of Understanding (MoU) - Consortium" in the format mentioned in 'Annexure-F' 2.2 The bidder (in case of sole bidder) must have minimum average annual turnover of INR 100 Crore from Ambulance Services during the financial years FY 2018-19, FY 2019-20 & FY 2020-21, as evidenced by the audited accounts of the bidder. i the bidder must have cumulative minimum average annual turnover of INR 100 Crore from Ambulance Services during the financial years FY 2018-19, 2019-20 & FY 2020-21. However, the lead partner in the consortium must have minimum annual average turnover of INR 60 Crore, while other partner must have minimum annual average turnover of INR 25 Crore from Ambulance Services during the mentioned financial years. However, the cumulative total minimum average annual turnover of consortium members jointly must be Rs. 100 Crore. Self-attested copies of the below documents for concerned financial years: 1. Audited ....
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....rust, applying as a <Sole bidder/Lead Partner of the consortium>, having our registered office is at <Mention the address of the registered office> fulfilling the requisite experience of operating and managing ambulances during the FY 2018-19, FY 2019-20 & FY 2020-21. The details of experiences are mentioned below. S. No. Description of Work/ service Provided Number of Ambulances Date of Commencement Date of Completion Project Duration Client Details (Name, Office Address, Phone No., email ID) 1. ALSA: ---- BLSA: ---- 2. ALSA: ---- BLSA: ---- 3. ALSA: ---- BLSA: ---- -- The relevant documents (as mentioned in the eligibility criteria) evidencing, the above said experience are submitted online. We further confirm that the submitting documents and the details provided in the certificate is true to best of my knowledge and we are aware that our Application for this project would be liable for rejection in case any material misre....
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....d the corrigendum issued from time to time like 08.04.2022, 04.05.2022, 20.05.2022 and 05.06.2022. Even allegation that pre-bidding was held on 18.04.2022 to favour the fourth respondent is incorrect in absence of any corroborative material information. Pre-bid meeting was held on 18.04.2022 in accordance with the relevant clauses, therefore, there is no infirmity and it is in terms of Clause 6 (6.1 and 6.2) of Section II. 16. It is further submitted that paragraph No. 34 of the Society's counter affidavit would answer to the effect that petitioner has not made out a case. 17. It is also submitted that minimum 100 crores turnover is required to be taken note of with reference to financial statement under Section 129(3) read with Section 2(6) of Companies Act, 2013 which includes "associate company". Fourth respondent had earlier gained experience and it would meet the requirement of 100 crores turnover. 18. Learned counsel for the fourth respondent relied on the following three decisions : (i) National High Speed Rail Corpn. Ltd. vs. Montecarlo Ltd. and another reported in (2022) 6 SCC 401, Para 28.4, 28.5. He apprised that Poddar's case (cited supra) can be disti....
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....he Project Appraisal Committee (PAC) of State Health Society, Bihar, Patna during its meeting held on 23/01/2023, by which respondent no. 4 has been declared to be L-1 bidder pursuant to the process of bidding carried out in furtherance of NIT bearing Reference No. 01/SHSB/PPP (AMBULANCE)/2022-23 published by the State Health Society, Bihar, Patna. (ii) Issuance of Order or writ, including writ in that nature of certiorari quashing that party of the decision of the Technical Committee, constituted under State Health Society, Bihar, Patna taking during its meeting held on 22/11/2022, by which, it has been, inter alia, recommended to open the financial bid of respondent no. 4 while declaring it to be technically qualified notwithstanding the fact that in terms of the Notice Inviting Tender, in question respondent no. 4 was not event qualified to participate in the process of bidding pursuant to NIT bearing Reference No. 01/SHSB/PPP(AMBULANCE)/2022-23 published by the State Health Society, Bihar, Patna. (iii) Issuance of a direction, order or writ, including writ in the nature of mandamus commanding the concerned respondent authorities to consider the present petitio....
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.... the years 2018-19, 2019-20 and 2020-21. Taking note of supplementary affidavit dated 11.10.2023, Note 15 read with the amount mentioned as on 31.03.2021, it is Rs. 32,71,91,698 and as on 31.03.2020, it is 23,02,47,915. It is further submitted that in the affidavit, it is materially evident that share of the respondent No. 4 is 60% and 40 % is that of Sammaan Foundation. However, in the affidavit dated 11.10.2023, from perusal of balance sheet (Note 22), it appears that the fourth respondent's share is 99 % as on 31.03.2021. This is also evident from counter affidavit filed on behalf of respondent No. 4 in CWJC No. 16899 of 2022. Submission of Fourth respondent 27. Learned counsel for the fourth respondent while defending his selection and treating him as L1, submitted that the petitioner has presented this petition belatedly i.e. after six months of technical evaluation of bids and four months from the date of financial bid. In other words, he is not a vigilant litigant insofar as filing this petition. 28. Learned counsel for the fourth respondent further submitted that on Page 24 of the affidavit dated 11.10.2023, balance sheet has been placed on record and for the year ....
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....e are no specific instructions to the bidders that while furnishing audited balance sheet each of the bidders is required to furnish Notes mentioned in the audited balance sheet. In the absence of specific instruction to the bidders, the respondent - Society cannot expect each of the bidders to produce material information of the audited balance sheet. On the other hand, what is required under Clause 2.2 is only audited balance sheet and not its internal material information. On this point, learned counsel for the petitioner/BVG relied on reported decision of the Apex Court in the case of Reliance Energy Limited and Another vs. Maharashtra State Road Development Corp. Ltd. and Others reported in (2007) 8 SCC 1, Para Nos. 38 and 39. 33. Learned counsel for the petitioner/BVG while replying to defects of the Society on leaking of e-mail submitted that administrative officer of Society - respondent has no business to communicate e-mail sent by the petitioner. It is submitted that all the members of the Committee were communicated with the e- mails. Therefore, prima facie, there is leak of material information of the petitioner to the fourth respondent by the administrative officer ....
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....to discrepancies in mentioning the amount in balance sheet and other related papers. 38. Fourth respondent does not fulfill the Clause 2.3 relating to experience for the year 2018-19, 2019-20 and 2020-21. The certificate dated 28.05.2022 furnished by the fourth respondent is for the period with effect from 29.07.2017 to till date. It is pointed out that on 20.09.2018 criteria was modified to the extent of 44 ALSA taking note of financial year read with the experience, fourth respondent did not fulfill the experience criteria vide Clause 2.3. 39. Learned counsel for the petitioner submitted that fourth respondent who has been declared as L1 is incorrect, since he does not fulfill the requisite qualification/criteria laid down in Clause 2.2 and 2.3. It is pointed out from the supplementary affidavit filed on behalf of the Society. 40. It is submitted that fourth respondent was assigned identical contract to the extent that fourth respondent in his individual capacity is executing work. On the other hand, declaration on behalf of fourth respondent in which it is stated that the fourth respondent was executing identical matter for the purpose of experience in the present matte....
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....urth respondent's counsel submitted that having regard to the documents of experience certificate dated 28.05.2022, read with work order dated 13.02.2017 pursuant to the earlier tender dated 18.06.2016 fourth respondent fulfills the criteria in Clause 2.3. 47. He has also countered the submission that petitioner has not raised year wise experience certificate. Learned counsel for the fourth respondent contended that citations quoted supra on behalf of the petitioner does not assist the case of the petitioner. He distinguished the citations in respect of (2018) 5 SCC 462 while reading paragraph 51 to the extent that it was third party. 48. In support of fourth respondent's eligibility is concerned, he has quoted Apex Court decision in the case of New Horizons Ltd. and Others vs. Union of India and Others reported in (1995) 1 SCC 478, Paragraph Nos. 23 and 24 and M/S N.G. Projects Limited vs. M/S Vinod Kumar Jain and Ors. reported in (2022) 6 SCC 127, Paragraph Nos. 22 and 23 to the extent that past experience is required to be taken note of irrespective of individual or experience gained subsequently, therefore, there is no infirmity on behalf of the Society in declaring the f....
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....of questioning the validity of disqualification of petitioner/BVG and others, reading of Consortium - agreement dated 15.06.2022 shows it is for the purpose of participating in the subject matter of bid process. Therefore, prima facie, petition of BVG India Limited and two others petitioners is maintainable. We find that there is no infirmity in the affidavit and so also Vakalatnama, therefore, the preliminary objection raised on behalf of second respondent - Society and fourth respondent - M/s Pashupatinath Distributors Private Limited stands rejected. 52. Both second respondent - Society and fourth respondent raised a preliminary issue in respect of maintainability of the writ petition filed by M/s Ziqitza Healthcare Limited. It is submitted that there is a delay of about four to six months insofar as filing the petition. Learned counsel for the petitioner M/s Ziqitza Healthcare Limited submitted that there is no delay as contended by the aforementioned counsel for Society and fourth respondent, since BVG India Limited and others petition was still pending consideration. In the event of BVG India Limited and others suffered an order, in that event, petitioner who is L2 is enti....
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....rth respondent - Pashupatinath Distributor Private Limited bid application was held to be in order is incorrect and it is not in consonance with clause/criteria at Clause 2.2 and Clause 2.3 of NIT. Fourth respondent - Pashupatinath Distributor Private Limited is not fulfilling the turnover of INR 100 crore and experience qualification is also not fulfilled. These defects have been ignored by the second respondent - Society which proceeded to hold that fourth respondent is eligible in technical bid evaluation and financial bid, it's declaration as L1 and award of contract to the respondent No. 4. Thus, the decision of the second respondent - Society would fall under the arbitrariness. Therefore, we are not re-assessing eligibility of bidders. On the other hand, decision of the second respondent - Society to favour the fourth respondent - Pashupatinath Distributor Private Limited is evident in ignoring the criteria and eligibility mentioned in the NIT read with material information placed by the fourth respondent along with bid application. 54. Petitioner - BVG and two others bid application was rejected at technical evaluation stage on the score that petitioners' Audited Balance ....
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....ment Corp. Ltd. and others reported in (2007) 8 SCC 1, paragraph Nos. 38 and 39 on the point of mala fide rejection. Petitioners' technical evaluation bid was rejected on the score that Notes have not been enclosed along with balance sheet. In view of these facts and circumstances, contentions of the respondents that it is a mandatory requirement to produce Notes along with Audited Balance Sheet is not tenable. Whatever instructions are assigned in the NIT, its various Clauses were required to be adhered by respective bidders. On the other hand, second respondent - Society rejected the petitioners - BVG bid application on technical evaluation to the extent in not producing Notes of the Audited Balance Sheet read with the statement of profit and loss account. Therefore, respective bidders are not expected to produce internal material information with reference to Audited Balance Sheet unless specific instructions to the respective intended bidders. That apart, very object of production of Audited Balance Sheet read with the profit and loss account is to verify whether the respective bidders are fulfilling one of the criteria at Clause 2.2 of the NIT. In other words, annual turnover ....
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....st this judgment. 6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories - those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in C.J. Fernandez v. State of Karnataka [(1990) 2 SCC 488] a case ....
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....d. case cited supra, paragraph Nos. 66 (i) to (vii), 69 reads as under: 66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under: "(i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in natu....
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....s bearing on the petitioners' contention. (c) Dutta Associates Pvt. Ltd. case cited supra is not assisting the contention of the petitioners - BVG India Limited and others. 56.2 Respondent - Society cited the following decisions- (a) State Bank of Travancore vs. Kingston Computers India Private Limited reported in (2011) 11 SCC 524. This has no relevancy in support of the Society's case. (b) Cox And Kings India Limited vs. Indian Railways Catering and Tourism Corporation Limited and Another reported in (2012) 7 SCC 587. This case has no relevancy to the fact in issue in support of Society's contention. 56.3 Fourth respondent has cited and relied upon the following decisions: (a) National High Speed Rail Corp. Ltd. case cited supra, the aforementioned decision would not assist the fourth respondent having regard to the fact that fourth respondent does not fulfill the eligibility criteria under Clause 2.2 read with Clause 2.3 of the NIT. (b) New Horizons Ltd. and Others case cited supra, this decision does not assist the fourth respondent's contention since on factual aspect fourth respondent is a sole bidder in the light of Clause 2.2, th....
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....icularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; (vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint." 51. It is necessary to note that in Annexure 1 to the NIT at Sl. No. 11, the bidder was required to set out details of any other company/firm involved as a consortium member to which Respond....
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....quirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work." The factual aspects of the matter is distinguishable insofar as awarding damages in the present case, for the reasons that in the present case by virtue of interim order fourth respondent was permitted to execute the subject matter of tender work and ....
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....res mentioned therein. It is also submitted that fourth respondent had furnished GST, PAN, ESI, PF of individual as well as Consortium and material information show different numbers, therefore, fourth respondent has not filed bid application with correct factual material information. On the other hand, fourth respondent has not approached the second respondent Society with clean hands. It is also submitted that Society - Administrative Officer had leaked the certain information of e-mail of the petitioner BVG India Limited and two others in respect of certain defects alleged to have been committed by the fourth respondent. However, this issue is trivial in nature and it does not assist petitioner - BVG. Taking note of the above mentioned defects in the fourth respondent's bid application, at threshold, Society - second respondent should have rejected its bid, however, Society being one of the State institution should have been fair in bid process without there being a violation of Article 14 and arbitrariness in the bid process. On these counts, the fourth respondent's technical bid evaluation and further proceedings of financial bid and declaring as L1 and further award of contra....
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....reasons that the words existing in the relevant Clause is with reference to a particular years i.e. 2018 - 19, 2019 - 20 and 2020 - 21 and not over all period of three years. Further we have noticed that fourth respondent experience is for a period with effect from 29.07.2017 to till date (till last date of submission of bid application). If these dates and events are taken into consideration, obviously fourth respondent does not fulfill the requisite experience for a particular year. Further, we have noticed that with effect from 20.09.2018, criteria was modified to the extent of 44 ALSA taking note of financial year read with the experience, vide Clause 2.3. On factual aspects itself, the fourth respondent has not fulfilled the criteria of experience for respective financial year, the cited decision i.e. (2018) 5 SCC 462, paragraph No. 51 does not assist the fourth respondent contention. 64. Fourth respondent's eligibility is concerned, learned counsel for the fourth respondent is relying on the Apex Court decisions in the case of New Horizon Ltd. and others vs. Union of India and others cited supra and M/s N.G. Projects Limited vs. M/s Vinod Kumar Jain and Ors. cited supra to....
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....This means that the decision-maker must understand correctly the law that regulates his decision-making power and he must give effect to it otherwise it may result in illegality. The principle of "judicial review" cannot be denied even in contractual matters or matters in which the Government exercises its contractual powers, but judicial review is intended to prevent arbitrariness and it must be exercised in larger public interest. Expression of different views and opinions in exercise of contractual powers may be there, however, such difference of opinion must be based on specified norms. Those norms may be legal norms or accounting norms. As long as the norms are clear and properly understood by the decision-maker and the bidders and other stakeholders, uncertainty and thereby breach of the rule of law will not arise. The grounds upon which administrative action is subjected to control by judicial review are classifiable broadly under three heads, namely, illegality, irrationality and procedural impropriety. In the said judgment it has been held that all errors of law are jurisdictional errors. One of the important principles laid down in the aforesaid judgment is that whenever ....