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Judgment
Challenge in the present writ petition is to the four different tenders for the Blocks - Udaipura, Silwani, Sanchi and Begumganj of District Raisen.
The last date for submission of the tenders was initially 15th January 2018, but the counsel for the petitioner states that the said date has been
extended till 23-01-2018.
Grievance of the petitioner is that the competent authority to award the contract is Chief General Manager of M.P. Circle; that the said officer is
retiring on 31st January, 2018 therefore, the respondents have curtailed the period of submission of tenders seeking bids in terms of the Guidelines,
Annexure-P/6; and also that in terms and conditions of the Guidelines for Preparation of Standard Schedule Rates contemplates separate rates for
non - rocky soil, rocky soft soil and rocky hard soil, which is not contemplated in the tender guidelines.
The argument is that earlier, in the year 2013 the respondents had invited bids for Badi Block of District Raisen for three separate sub-soil viz.
''kachha'' soil, ''pakka'' soil and rocky soil whereas no such distinction has been made in respect of the present tender process. It is also argued by
the learned counsel for the petitioner that no concession has been given to small scale and medium scale tenderers; therefore, the entire tender
process is vitiated.
We do not find any merit in any of the arguments advanced by the learned counsel for the petitioner. Annexure-P/17 relied upon by the counsel
for the petitioner to substantiate his arguments that Shri G.C. Pandey, Chief General Manager, is retiring on 31-01-2018, therefore, the tender
process is sought to be completed before the date of his retirement. However, such order in fact, shows that it is posting of one Shri Mahesh
Shukla in lieu of Shri G.C. Pandey who would be retiring on 31-01-2018. Therefore, it cannot be said that in view of imminent retirement of Shri
G.C. Pandey, the process of tender has been expedited so as to complete it before the date of his superannuation. In fact, the order of posting is in
respect of many officers, who have either retired in the months of November and December, 2017 or may be retiring in January, 2018. It is an
order of posting of the officers in view of imminent retirement. Therefore, the apprehension of the petitioner is wholly unjustified.
The procedure for enlistment of contractors, Annexure- P/6, or Guidelines for Preparation of Standard Schedule of Rates, are the guidelines for
assisting the respondents. It is not the guidelines which are required to be mandatorily complied with. Rather the guidelines by very nature of it, are
to be substantially complied with. Such guidelines are not enforceable as a statute when any right can be claimed by a tenderer on the basis of such
guidelines. These guidelines are meant for internal working of the Department so as to work in a transparent manner.
The argument that the time limit between the date of call of tenders and the date of opening of tenders shall be observed, is said to be
mandatory, as the word `shall'' and that too, in a guideline, does not mean the mandatory condition. For condition to be mandatory there has to be
consequences for not complying with the time limit. Since there is no consequence for not adhering to the time schedule, therefore, the fact that the
time limit is lesser than the time limit prescribed for publication of tenders in the guidelines is not a ground on the basis of which the tender can be
said to be vitiated.
Similarly, an argument that there is no segregation of sub-soil i.e., non-rocky, rocky soft soil and rocky hard soil, is not again tenable. The earlier
bid referred to by the counsel for the petitioner was in respect of Badi Block of Raisen District. May be, in that area there was three kinds of soils
but in the present four blocks, the sub-soil may be the same. However, it is for the expert to determine the tender conditions and not for this Court
to sit over the opinion of the expert, more so, in exercise of power of judicial review under Article 226 of the Constitution of India. Still further the
conditions of the tender are applicable to all the tenderers, therefore, the petitioner alone cannot make a grievance for not having given a separate
sub-soil condition/criteria in the tender documents.
Recently, the Supreme Court in the case of Ran Vijay Singh & Ors. vs. State of U.P. and others, (Civil Appeal No.367 of 2017, decided on
11-12-2017) was examining the intervention of the Court in the matter revaluation of answer-sheets. It was held as under:
On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an
answer sheet. If an error is committed by the examination process does not deserve to be derailed only because some candidates are disappointed
or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer
equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one
way out of an impasse - exclude the suspect or offending question.
Again in the case of M/s Sam Built Well Pvt. Ltd. vs. Deepak Builders and others, (Civil Appeal No.21858 of 2017, decided on 14-12-2017)
the Supreme Court while examining the conditions in tender document and scope of judicial review in respect of such tender held as under:
Having heard learned counsel for both parties, it is important to set out the parameters for judicial review in cases like the present one. In a
similar case, namely, Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 at 825-26, paragraph 4.2(a) of Section
III of the tender conditions in that case again spoke of a certain minimum number of ""similar contracts"" as previous work experience. The question
before this Court was whether an inter-state high speed railway project could be similar to metro civil construction work. After laying down the
parameters of judicial review and referring to various judgments for the same, this Court held:
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 must defer to this understanding and
appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application
of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender
documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation
given.
In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to
the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained
from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or
mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court.
In Montecario Ltd. vs. NTPC Ltd., (2016) 15 SCC 272 at 288, this Court referred to various judgments, including the judgment in Afcons
Infrastructure Ltd. (supra) and concluded as follows:
We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are
floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work
and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the
notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the
owner''s organisation is taken. This ensures objectivity. Bidder''s expertise and technical capability and capacity must be assessed by
the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability
and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical
in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned,
is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied
are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean,
these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is
arbitrary or mala fide or procedure adopted is meant to favour one. The decisionmaking process should clearly show that the said
maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or
subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or
comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable
to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical
works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of
free play in the joints.
In view of the above judgments, we find that the tender conditions are framed by the experts who are seeking execution of the contract. This
Court in exercise of power of judicial review has no expertise to sit over the opinion of the experts in the matter. Consequently, we find that tender
conditions cannot be interfered with in writ jurisdiction, as they are not palpably and manifestly untenable or have been introduced so as to exclude
a valid tender from the arena of considerations.
The last plank of argument on behalf of the petitioner is that benefit of small scale and medium scale tenderers has not been given, is again not
tenable. The argument is based upon the fact that earlier such a benefit was given. The grant of benefit in the earlier tender process does not make
it mandatory that the respondents have to grant such benefit in a subsequent tender. It is a matter of policy for the respondents so as to grant such
benefit or not.
In view of the above, we do not find any merit in the writ petition. It is accordingly dismissed. No costs.