TaxTMI 
TaxTMI 
2026 (8) TMI 1393
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..... Anjali Dhyani, Ms. Jyotsana B., Advs., Ms. Saumya Gupta, Adv. For the Respondents : Mr. Haris beeran, Mr. Zulfiker Ali P.S. & Ms. Lebina Baby, Adv. Mr. Chetan Sharma, ASG, with Ms. Avshreya Pratap Singh Rudy, CGSC and Mr. Amit Gupta, SPC, Ms. Akshi Bali (Legal Consultant), Mr. Ankit Khatri, Ms. Nyasa Sharma, Mr. Amit Gupta, Mr. Shubham Sharma & Mr. Naman, Advs. for R1 & R2., Ms. Meenakshi Arora, Sr. Adv., Mr. Arjun Raghavendra, Ms. Nanakey Kalra, Mr. Vivek Ram Bhat & Mr. Stephin George, Advs. Ms. Priyanka Sethia, Ms. Poonam Shekhawat along with Ms. Vratanshi Arora, CS Ms. Priyanka Sethia, Mr. Rohan Jaitley, CGSC with Mr. Akshay Sharma, Mr. Dev Pratap Shahi, Mr. Varun Pratap Singh & Mr. Yogya Bhatia, Advs. Mr. Nikhil Goel, Sr, Adv., Mr. Arjun Raghavendra M., Mr. Vivek Ram Bhat & Mr. Stephin George, Advs. Mr. Haris beeran, Mr. Zulfiker Ali P.S. & Ms. Lebina Baby, Adv. JUDGMENT ANIL KSHETARPAL, J .: 1. The present batch of seven Petitions raise a common issue concerning the technical evaluation of bids submitted by the Petitioners pursuant to various Requests for Proposal (RFPs) issued by the Respondent Nos.1 and 2 in each of the Petitions for outsourcing of Consular/Pas....
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.... Petitions, lies in a narrow compass and centres around the legality of the criteria-wise technical evaluation undertaken by the Respondent Nos. 1 and 2 as well as the lack of reasons furnished in support thereof. 7. To briefly recapitulate the background of the present controversy, the Respondent Nos.1 and 2 issued separate RFPs inviting bids for the outsourcing of the CPV services at the India Missions in Kuwait, Abu Dhabi (UAE), Singapore and Canberra (Australia). Each RFP envisaged a two-stage bidding process comprising a technical-bid stage followed by a financial-bid stage. 8. Pursuant to the aforesaid RFPs, the Petitioners submitted their technical and financial bids within the prescribed timelines. Upon evaluation of the technical bids, the Respondent Nos.1 and 2 informed the Petitioners that they had failed to secure the minimum qualifying score of 70% marks and were, consequently, held ineligible to participate in financial-bid stage. 9. Aggrieved by their technical disqualification and the non- disclosure of parameter-wise breakup of marks and reasons for such disqualification, the Petitioners approached this Court by way of W.P.(C) 1562/2026 captioned E TRAV Te....
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....d by the Petitioners against the 9 categories are as follows: S. No. Criteria Max. marks Marks granted to the Petitioners in each country in the respective criteria E TRAV Tech Limited M/s Verasys Limited UAE Sing. Aus. Kuwait Kuwait Aus. UAE 1a Location of the ICACs 8 8 7 7 3.5 3 6.6 7 1b Parking facilities 5 4 5 4 3.5 3 3.8 4.5 2a Area of ICACs 8 8 7.2 7.3 6 6 6.9 6.5 2b Layout and Physical infrastructure of ICACs 10 7 4 9.8 5 5 5.7 10 3a Number of submission counters 6 4.5 4.8 4.6 4.5 4.5 4.75 4.5 3b Operational efficiency of the submission process 5 3.5 3.5 2 2 3 3.5 2 4a Provision of Application Facilitating Services at ICACs 7 3 3 4 3 4 5 2 4b Quality of Organisational Structure 6 4.5 4.5 6 4.5 3.5 4.5 4 5a The availability of appointment slots 5 0 3.5 3.5 3.5 3.5 3.5 0 5b Total Turnaround time 5 0 5 0 5 5 5 0 6 Call Centres 5 5 ....
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.... exhibits a consistent and systemic pattern of arbitrariness, namely: (a) departure from the evaluation methodology prescribed under the RFPs; (b) application of undisclosed comparative benchmarks; (c) deduction of marks despite objective compliance with the prescribed criteria; (d) inconsistent marking under identical parameters despite materially identical proposals; (e) complete absence of reasons explaining the deductions made by the Technical Evaluation Committees. Accordingly, it has been argued that the challenge is not directed against the technical wisdom of the Evaluation Committees rather against the legality, transparency and fairness of the decision-making process adopted by the Respondent Nos. 1 and 2. 19. Learned counsels further argued that despite the categorical statement recorded in Paragraph no.74 of the Judgment in E TRAV Tech Ltd .- I that reasons forming the basis of the break-up marks would be furnished, Respondent Nos.1 and 2 merely disclosed numerical marks without providing any evaluation remarks or reasons explaining the deductions under the individual criteria. 20. It was contended that such non-disc....
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....heduling, application tracking and multilingual interfaces [Criterion 7(a)]; iv. integrated grievance redressal mechanisms comprising multiple grievance channels, AI-enabled grievance management, chatbot facilities, MIS integration, structured escalation workflows, dashboard services, customer feedback mechanisms and CSAT monitoring [Criterion 7(b)]; v. comprehensive technology-enabled call centre infrastructure comprising IVR, web chat, chatbot, WhatsApp and e-mail support with a committed call waiting time of less than two minutes and sufficient operational capacity to handle applicant queries [Criterion 6]. vi. provided client references, each relating to services falling within the eligible categories, rendered within the preceding five years with a minimum duration of two years [Criterion 9]. 25. Despite furnishing materially compliant proposals, the Petitioners were awarded disproportionately low marks under these comparative criteria without any disclosure of the proposal considered as the "best offer", the comparative benchmark adopted, the basis of proportional deductions; or any evaluation remarks explaining why their proposals were considere....
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....the learned counsel, Verasys had produced extensive documentary material, including client references, testimonials, completed Government projects and evidence demonstrating substantial experience in Government-to-Citizen digital service delivery and execution of large-scale technology-enabled public service projects catering to millions of users. 31. Despite the aforesaid material, zero marks were awarded under this Criterion in Kuwait and Canberra (Australia) without recording any adverse finding regarding its credentials, reputation or past performance. IV. Inconsistent evaluation under identical parameters: 32. Learned senior counsel for E TRAV further argued that the evaluation under Criterion 9 demonstrates inherent inconsistency and arbitrariness. The same client references, credentials, experience certificates and supporting documents were furnished across all four tenders and satisfied every eligibility requirement prescribed under the RFPs. However, despite identical material being evaluated, E TRAV received: i. 4 out of 7 marks in Abu Dhabi (UAE); ii. 4 out of 7 marks in Canberra (Australia); iii. 3 out of 7 marks in Singapore; and ....
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....' grievance regarding award of zero marks is selective, as several other bidders were also awarded zero under the same parameters. No procedural illegality, arbitrariness, mala fide or deviation from the RFP has been established. 39. It is the case of the Respondent Nos.1 and 2 that the technical presentations formed an integral part of the evaluation under Chapter XV of the RFP, read with Chapter VII and Annexure-J, and the assessment was based on both the written proposals and the explanations furnished before the Outsourcing Committees. 40. It was contended that, by executing the declaration under Annexure-E, the Petitioners expressly accepted the evaluation methodology and selection process. Having participated without protest, it cannot now challenge the tender conditions after being unsuccessful, and such conduct attracts the doctrine of approbate and reprobate. 41. It was further submitted that the RFPs are consistent with Rule 173 of the General Financial Rules, 2017, and the technical evaluation was conducted strictly in accordance with the prescribed criteria, ensuring transparency, fairness and competitiveness. 42. Lastly, while highlighting the limited s....
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....efrained from examining the merits of the technical evaluation, as the financial bids had not yet been opened and no comparative assessment was possible. The Court had, therefore, found the challenge to the technical disqualification premature, being founded on alleged arbitrariness in a process which was still incomplete. 47. Moreover, it is pertinent to note that the learned Additional Solicitor General had, at that stage, made a statement before this Court that the parameter-wise marks along with reasons would be disclosed upon completion of the tender process. Accordingly, this Court while recording the aforesaid submission, declined interference and expressly granted liberty to the Petitioners to pursue their remedies in accordance with law after such disclosure. 48. Additionally, the Order of Supreme Court in E TRAV Tech Ltd .- II (Supra) is also of significant consideration, since the Court while declining to interfere with the Judgment of this Court, clarified that the said Judgment would not preclude the Petitioners from raising all permissible contentions, including those urged earlier, thereby preserving their right to challenge the evaluation once the relevant mat....
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....overning tender matters. In Tata Cellular v. Union of India [(1994) 6 SCC 651], it was held that although the Government enjoys freedom in contractual matters, its decisions remain amenable to judicial review on the grounds of illegality, irrationality and procedural impropriety. 56. In Jagdish Mandal v. State of Orissa [(2007) 14 SCC 517], the Supreme Court while dealing with the scope of judicial review, delineated the scope of a writ Court and framed three questions, which a writ Court shall take into consideration before exercising its jurisdiction: i. whether the process or decision is mala fide or intended to favour someone; or ii. whether it is so arbitrary and irrational that no responsible authority acting reasonably could have taken it; and iii. whether public interest is affected. If the answers to aforestated questions are in the negative, there should be no interference, even if some procedural error or some prejudice to an individual bidder is shown. 57. The Supreme Court has uniformly held that while deference is owed to expert bodies on technical matters, such deference presupposes that the evaluation has been conducted fairly, tr....
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....o disclose the basis/reason on which such marks were awarded. The evaluation sheets neither identify deficiencies in the Petitioners' proposals nor disclose the comparative benchmarks applied while awarding proportionately lower marks under comparative criteria. Consequently, the Petitioners have been left without any means to ascertain why their otherwise compliant proposals were considered inferior to those of competing bidders. 63. The aforesaid deficiency is particularly evident in Criteria 1(a), 2(b), 4(a), 6, 7(a), 7(b) and 9 requiring comparative evaluation by awarding full marks to the bidder furnishing the "best offer" and proportionately lower marks to others. While such comparative assessment is permissible, it necessarily requires disclosure of the objective standards governing the comparison. 64. Another significant feature of the disclosed evaluation under the comparative evaluation Criteria is evident from the inconsistency in marking under identical parameters, in particular under Criterion 9 which deals with the Reputation of the bidding company, the details of the same are reproduced hereunder: S. No. Criteria Scoring Criteria/Remarks ....
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....cretion. Such an approach, in the opinion of this Court, is contrary to the principle of a level playing field and cannot withstand scrutiny under Article 14 and 19(1)(g) of the Constitution. 68. Likewise, the deductions made under objective evaluation parameters under Criteria 1(b), 2(a), 3(a), 3(b), 5(a) and 5(b) are equally unsustainable. The details of the Criteria are as follows: S. No. Criteria Scoring Criteria/Remarks 1b Parking facilities with capacity and type of parking (5 Marks) i) 5 Marks- Exclusive Parking with adequate slots in ICAC ii) 4-Marks- Adequate parking slots in or near ICAC iii) Less than 4 Marks - for Inadequate slots/slots not closer to ICAC. 2a Area of ICACs (Refer to 1(A) (xi) of Chapter VII) (8) Marks) i) 6 marks- Minimum Prescribed Area ii) Offer with Area more than the prescribed Minimum will be given higher marks relative to (i) above iii) 0 Marks- Less than the Minimum prescribed Area 3a Number of submission counters Refer to 1(A) (xi) of Chapter VII) (06 marks) i) 4.5 Marks- Minimum Prescribed Number of counters ii) Offer with counters more than the m....
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....system and operational framework through which the prescribed timeline would be achieved. Despite submitting materially identical proposals in all four Missions, E TRAV was awarded 3.5 marks in the Canberra (Australia), Singapore and Kuwait Missions, but 0 marks in the Abu Dhabi (UAE) Mission. Similarly, Verasys, despite proposing availability of appointment slots at ICACs within 4 days was awarded 3.5 marks in Kuwait and Canberra (Australia) and 0 marks in the Abu Dhabi (UAE) Mission. 70. Likewise, under Criterion 5(b), bidders proposing a turnaround time of 30 minutes or less were entitled to 5 marks. E TRAV, despite proposing a turnaround time of less than 30 minutes, was awarded 0 marks in the Canberra (Australia) and Abu Dhabi (UAE) Missions, while receiving 5 marks for the materially identical proposal in the Singapore and Kuwait Missions. Likewise, Verasys, despite proposing a turnaround time of 28 minutes in all three Missions, was awarded 5 marks in the Canberra (Australia) and Kuwait Missions but 0 marks in the Abu Dhabi (UAE) mission. 71. Under Criterion 1(b), the scoring criteria was to award 5 marks for exclusive parking with adequate slots at the ICAC. Verasys i....
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....tively, all of which exceeded the prescribed minimum area, yet received only 6.9 out of 8 marks. 76. Similarly, in Abu Dhabi (UAE), the following was proposed- S. No. Location Min. Area Prescribed in RFP (sq. ft.) Area proposed by Verasys 1. Al Khalidiya/Al Danah 3,500 3,800 2. Al Reem 2,500 2,600 3. Musaffah 2,500 2,670 4. Al Ain 1,200 1,420 5. Ghyathi 800 875 6. Madinat Zayed 800 900 7. Dubai (Bur Dubai) 10,000 10,441 8. Dubai(Furjan/Jebel Ali/DIP) 5,000 5,100 9. Sharjah (Al Majaz) 3,500 3,700 10. Sharjah (Rolla) 500 550 11. Ajman (Al Jerf) 800 904 12. Fujairah 1,000 1,120 13. Umm Al Quwain 1,000 1,000 14. Khorfakkan (Corniche/Subara) 1,000 1,000 15. Kalba 1,000 1,000 16. Ras Al Khaimah (Nakheel/Khujan/Mareed) 1,000 1,100 As evident, despite exceeding the prescribed minimum area in most of the locations, Verasys was awarded only 6.5 out of 8 marks. 77. Under Criterion 3(a), marks higher than 4.5 were envisaged where the bidder proposed counters exceeding the prescribed m....
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.... the absence of any recorded reasons for such varying assessments, the distinct allocation of marks appears unsupported by any objective basis. Consistency in evaluating substantially identical material becomes an essential facet of a fair and transparent tender process, and any departure therefrom must be supported by cogent reasons borne out by the record. However, such inconsistency, unsupported by any recorded reasoning, further reinforces the allegation of arbitrary evaluation. 83. We are also unable to accept the submission of the Respondent Nos.1 and 2 that any deficiencies stood explained through oral presentations made before the Technical Evaluation Committees. Even if oral presentations formed part of the evaluation, they cannot substitute recorded reasons or justify undisclosed standards. If deductions were founded upon shortcomings noticed during such presentations, those shortcomings ought to have been reflected in the contemporaneous evaluation records. Their absence renders the evaluation opaque and incapable of meaningful scrutiny. 84. In the aforesaid circumstances, we are satisfied that the challenge made by the Petitioners is directed not against the techn....
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....mandates transparency in the procurement process, requiring disclosure of reasons for rejection of bids. Mere communication of parameter-wise marks, without indicating the reasons or factual basis for deductions or comparative assessment, neither demonstrates application of mind nor enables the Petitioners to understand why their otherwise compliant proposals were found deficient. 90. The obligation to record and communicate reasons is further reinforced by Rule 189 of the GFRs, 2017, which requires the Evaluation Committee to record reasons while evaluating and rejecting technical proposals. Similarly, Chapter XV, Clause B(II)(a) of the RFP mandates that unsuccessful bidders be informed of the reasons for their disqualification. Recording reasons is an indispensable component of fair administrative action, as it ensures application of mind, curbs arbitrariness, facilitates judicial review and assures bidders that the evaluation has been undertaken on relevant considerations. [Ref: Kranti Associate(P) Ltd. v Masood Ahmed Khan [(2010) 9 SCC 469]]. 91. Moreover, at this stage, we can also not lose sight of the fact that this Court in E TRAV Tech Ltd .- I, while affirming the su....