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Judgment
Arijit Banerjee, J
The petitioner has challenged a Notice Inviting Tender dated 22 August, 2018 issued by the respondent No. 4 inviting proposal to provide consulting services from Project Management Consultants to design, develop, manage and implement Smart City Projects under Smart City Mission at Port Blair, A & N Islands and the letter of intent dated 25 September, 2018 issued by the respondent Authorities in favour of the private respondent.
Learned counsel for the petitioner submitted that an earlier Notice Inviting Tender was issued for the same project. The petitioner as a joint venture partner of one M/s Eptisa Servicious De Ingenieria participated in the tender process. Two other parties had also participated. Out of the three participants it was found that the bid of one was not in consonance with clause 15.4 of the Request for Proposal (in short RFP). Rule 184 of the General Financial Rules, 2017(in short GFR) issued by the Ministry of Finance provides that the number of shortlisted consultants should not be less than three, Hence the Authorities cancelled the said tender process. On the very next date i.e. 22 August, 2018 a Notice Inviting Tender was issued for the same project which is under challenge in the present writ application.
Learned counsel submitted that pursuant to the impugned notice two bids were received by the Authorities. The Authorities should have cancelled the said tender process also since at least three bids were not before the Authorities as is required by Rule 184 of the GFR. However, the Authorities, obviously to favour the private respondent, awarded the contract to the private respondent which was found to be L1. He submitted that this was contrary to the rules vitiating the entire tender process and all acts done pursuant to the impugned NIT should be quashed.
Learned counsel further submitted that the Authorities could not have considered the bid of the private respondent nor could have awarded the contract to it since the private respondent is debarred by the World Bank. In this connection reference was made to clause 9.4
(h) of the RFP which reads as follows:-
"(h) The sole bidder/Lead Bidder/Consortium member should not have been debarred/blacklisted by any Central Government/State Government/Central PSU/State PSU or any other Autonomous Organisation in India and Funding Agencies as on Proposal Due Date. Declaration to be submitted in Form Tech - 11."
Learned counsel submitted that the private respondent is a 100% subsidiary of a company called AECOM which was debarred by the World Bank till 9 January, 2019. In other words, at the time when the private respondent participated in the tender and even on 4 December, 2018 when the written contract was executed between the Administration and private respondent, the parent company of the private respondent stood debarred from participating in any tender process and consequently the private respondent being a 100% subsidiary also stood debarred. Learned counsel further submitted that it would appear from the records of the respondent PBMC that the Law Secretary has given an opinion which is in consonance with the submission made by the petitioner i.e. the private respondent stood debarred as a result of the parent company being debarred by the World Bank. The private respondent was an ineligible bidder and hence could not have been awarded the contract.
Appearing for the PBMC learned counsel submitted that the petitioner did not even participate in the tender process in question. Hence he cannot challenge the same. He further drew my attention to rule 173 (xx) of the GFR which reads as follows:-
"(xx) Lack of competition in rule 173 (xix) shall not be determined solely on the basis of the number of Bidders. Even when only one Bid is submitted, the process may be considered valid provided following conditions are satisfied:
a. the procurement was satisfactorily advertised and sufficient time was given for submission of bids.
b. the qualification criteria were no unduly restrictive; and
c. price are reasonable in comparison to market values"
Learned Counsel then submitted that it has specifically been stated in paragraph 10 of the affidavit-in-opposition filed on behalf of the PBMC that the private respondent does not appear in the list of debarment published by the World Bank. PBMC never allowed any blacklisted entity to participate in the bidding process. No affidavit-in-reply has been filed by the petitioner controverting this statement and hence the same should be deemed to be admitted. He further submitted that substantial work has progressed under the contract awarded to the private respondent and if at this stage the tender process and the contract is quashed the Government shall suffer huge financial loss.
Appearing for the private respondent learned counsel submitted that in a tender process unless the decision of the Authority concerned is absolutely perverse, the Court should not interfere. In support of such submission he relied on the decision of the Hon'ble Supreme Court in the case of Afcons Infrastructure Limited vs Nagpur Metro Rail Corporation Limited and another reported in (2016) 16 SCC 818.
On the factual score he submitted that the process has been going on since December, 2016. The first NIT was issued on 28 December, 2016. Neither the petitioner nor the private respondent participated in the tender process. Nobody was found to be technically responsive. The process was scrapped. The second NIT was issued on 15 June, 2017. Both the petitioner and the private respondent participated.
Only one bidder was found to be technically responsive. Again the process was cancelled. The third NIT was issued on 3 May, 2018. That tender process was cancelled by the order dated 21 August, 2018 for the reasons stated in the order. The fourth NIT is the subject matter of challenge in the present writ petition. The entire process has been transparent. The Authorities had the power to accept the bid of the private respondent which was lower than the other bid although there were less than three bidders. There is nothing wrong or irregular with the award of the contract to the private respondent.
He then submitted that the petitioner is blowing hot and cold. In paragraph 13 of the writ petition the petitioner has stated that Rule 184 of the GFR is contrary to law. However, the petitioner is now purporting to rely on Rule 184 to contend that the tender process under challenge is vitiated.
He further submitted that the petitioner has admittedly not participated in the subject tender process. The reason given by the petitioner is at paragraphs 14 and 15 of the writ petition which read follows:-
"14.That petitioner further submits that subsequently the Chief Executive Officer vide notice inviting tender under reference n.23-22/PMC/SC/AW/MC/1721 dated 22-08-2018 floated afresh RFP i.e. Request For Proposal for selection of Project Management Consultant (PMC) to design, develop, manage and implement Smart City Project. It would not be out of place to mention here that in the tender notice the last date of submission of tender is kept as 12-09-2018.
That on 5-9-2018 a pre-bid was held wherein queries of the prospective bidders were addressed by Port Blair Smart Projects Limited on 10-09-2018. Such conduct on part of the respondent authorities is in gross violation of rule 173 (x) of GFR, 2017 because the last date of submission of tender was 12-09-2018 and the pre-bid queries were addressed only in the afternoon of 10-09-2018 meaning thereby only one working day was given to interested bidders to submit the bid which is unreasonable, irrational and has been issued with malafide intention apart from violating the principle of natural justice and fair-play."
Learned counsel submitted that the petitioner has supressed that neither did it ask for any clarification nor did it participate in the pre-bid meeting. Sufficient time was granted to the intending bidders to put in their bids.
On the point of debarment, learned counsel submitted that the private respondent is a 100% subsidiary of AECOM Infrastructure and Environment UK Ltd. Neither the private respondent nor the parent company features in the list of companies debarred by the World Bank. In this connection he referred to the list published by the World Bank containing the names of the companies debarred by the World Bank. He further referred to the Instructions to Consultant which forms part of the NIT dated 22 August 2018 and drew my attention to the clause stating that the sole bidder/Lead Bidder/Consortium member should not have been debarred/blacklisted by any Central Government/State Government/Central PSU/State PSU or any other Autonomous Organisation in India and Funding Agencies as on Proposal Due Date. He submitted that the private respondent satisfied this eligibility criterion. The learned counsel prayed for dismissal of the writ petition.
I have given anxious consideration to the rival contentions of the parties. This writ petition should be rejected in limini since not having participated in the subject tender process, the writ petitioner has no locus standi to challenge the same. However assuming that the petition is maintainable, let me deal with the merits of the petitioner's case.
The process for selection of Project Management Consultant to design, develop and manage and implement Smart City Projects started in December, 2016. Three tender processes had to be annulled and in my opinion, for good reason. The project was getting delayed inordinately. Public projects should be implemented as early as possible in greater public interest. Hence, when the Authorities decided to accept the bid of the private respondent pursuant to the fourth NIT, I do not think they did anything wrong or illegal although there were less than three bidders since under the GFR they had the power to do so. No case has been sought to be made out that such power was exercised for any oblique purpose or arbitrarily. The Authorities are the best Judge of which bid to accept and which to reject. In Afcons Infrastructure Limited (supra) the Hon'ble Supreme Court held that the decision-making process of the employer or owner of a project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible Authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. The Constitutional Courts are expected to exercise restraint in interfering with the administrative decisions and ought not to substitute its view for that of the Administrative Authority. A mere disagreement with the decision-making process or the decision of the Administrative Authority is no reason for a Constitutional Court to interfere. The threshold of mala fides, nepotism, arbitrariness, irrationality or perversity must be met before the Constitutional Court interferes with the decision-making process or the decision.
As regards the point of debarment, the contention of the petitioner is completely meritless. Learned counsel for the private respondent has demonstrated by reference to the list of debarred companies published by World Bank that neither the name of the private respondent nor the name of the holding company which is a UK based company, features in the list. Further, the clear statement made in this regard in the affidavit-in-opposition filed on behalf of the PBMC has not been controverted by the petitioner.
On 06.03.2019 at the request of learned counsel for the petitioner I had called for the records of this case from PBMC. I have gone through the records. It is true that there is an opinion of the Law Secretary in the records to the effect that the private respondent stands debarred by reason of debarment of AECOM. This does not appear to be factually correct. The holding company of the private respondent is not AECOM but AECOM Infrastructure and Environment UK Ltd. which is clearly not a debarred company. Further, a second legal opinion of a learned advocate is also there in the records which clearly states that the private respondent is not a debarred company and no fresh tender need be floated. The Board of Directors of PBMC at its meeting held on 26 November, 2018 decided to act on the opinion of the learned advocate and accordingly the contract was awarded to the private respondent. By no means it can be said that the Authorities acted in a manner other than bona fide.
I find nothing wrong or illegal with the decision-making process, far less any perversity in such process. If the Authorities have taken an erroneous decision, it is not for the Writ Court to interfere in the exercise of its high prerogative writ jurisdiction. No case could be made out by the petitioner that the Authorities have shown undue favouritism to the private respondent. A bona fide administrative decision arrived at by an Authority in its wisdom will not be easily substituted with the Court's decision. As is established law, the High Court while exercising jurisdiction under Article 226 of the Constitution is concerned not with the merits of the decision of an Authority but with the process following which the Authority has arrived at such decision. I find no lack of transparency or no infirmity in the decision-making process in the instant case.
Learned counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in the case of Asha Sharma vs. Chandigarh Administration and others reported in (2011) 10 SCC 86. In particular he relied on paragraph 12 of the reported decision which reads as follows:-
"12. Arbitrariness in State action can be demonstrated by existence of different circumstances. Whenever both the decision-making process and the decision taken are based on irrelevant facts, while ignoring relevant considerations, such an action can normally be termed as "arbitrary". Where the process of decision making is followed but proper reasoning is not recorded for arriving at a conclusion, the action may still fall in the category of arbitrariness. Of course, sufficiency or otherwise of the reasoning may not be a valid ground for consideration within the scope of judicial review. Rationality, reasonableness, objectivity and application of mind are some of the prerequisites of proper decision making. The concept of transparency in the decision-making process of the State has also become an essential part of our administrative law."
There cannot be any dispute with the above proposition of law. However, as discussed above I find no arbitrariness or irrationality or lack of transparency on the part of the Authority in the present case.
For the reasons aforesaid this writ petition is dismissed with costs assessed at Rs. 15,000/-