Allahabad High Court: In a writ petition filed by Dynamic Infracon Pvt. Ltd and Bengal Wood & Allied Products (‘petitioners’) seeking quashing of the entire tender process held in pursuance of e-bid tender document issued by Superintending Engineer, PWD, the division bench of Shekhar B. Saraf* and Manjive Shukla, JJ. reiterated that interference by the writ courts is open only when the action of the State authorities is arbitrary, discriminatory or biased but not merely because the court feels that some other term would have been preferable. Thus, the Court while finding that the action of the authorities is not arbitrary, discriminatory, mala fide or actuated with any bias, dismissed the petition.
Background:
The petitioners are a Private Limited Company and Sole Proprietorship Firm respectively, engaged in the business of supply of Sal wood sleepers and edgings. On 28-05-2024, the Sal Sleeper Purchase Committee through the Office of the Chief Engineer, PWD issued an e-bid document wherein it invited applications from interested Government institutions/ corporations/firms/contractors/business entities either individually or as joint venture/consortium for supply of sal wood sleeper and edgings for construction of Pontoon bridges in the Maha Kumbh Mela, 2025 that was to be held in the city of Prayagraj, Uttar Pradesh.
As per the bid document, the process of selection consists of two stages namely, technical bid and financial bid. The financial bids would be open at a subsequent stage for only those bidders who were successful in the technical bid.
The date of commencement of the bidding process was fixed as 27-05-2024 and the last date of submission of the bidding documents was fixed as 11-06-2024 and thereafter, the technical bids were to be opened on the same day itself. However, on 27-05-2024, the Competent Authority issued a corrigendum, whereby the last date for the opening of the technical bid was extended to 12-06-2024.
The petitioner submitted its technical as well as financial bid for the supply of Sal wood sleeper and edgings on 12-07-2024 and was found eligible in the technical bid. Out of total 12 bidders who submitted their technical bids, 11 bidders (including petitioner) were found to be qualified for the financial bid which was opened on 15-06-2024 wherein the contract was granted in favor of 5 bidders because they agreed to supply the required product at the same rate quoted by a consortium of 3 entities. After the completion of the bidding process, the Letter of Award (‘LoA’) was granted in favor of 5 bidders.
Therefore, the petitioner being aggrieved by the conferring of LoA , without allegedly following mandatory condition of the e-bid document has filed the present petition.
Analysis and Decision:
The Court perused Clause 5 (Qualification Criterion for Eligible Bidders) and Clause 6 (Submission of Bids) of the e-bid document.
The Court further examined the law on the issue of interference by writ courts in tender matters.
After perusing Tata Cellular v. Union of India, (1994) 6 SCC 651 and various other cases , wherein the Court has espoused on the scope of judicial review in terms of tender prescribing eligibility criteria and held that the interference by the writ courts is open only when the action of the State authorities is arbitrary, discriminatory or biased but not merely because the court feels that some other term would have been more preferable.
After examining the factual matrix that the lead member of the consortium was required to have 51% of the 1000 cubic meters, the Court found that though doubt has been raised by the petitioner, the same has been countered by the respondents. Documents have been produced that indicate the lead member of the consortium was having a total of 1,131.97 cubic meters of Sal wood logs and Sal wood edgings. Thus, the Court concluded that these kinds of factual disputes cannot lead to interference by a writ Court.
Concerning the mandatory inspection as per clauses 6(g) and 6(h) of the e-bid document, the Court viewed that the document has to be read as a whole, and the said clauses have to be read together.
Upon a conjoint reading of said two clauses, the Court viewed that there was discretion with the Sal Purchase Committee to carry out inspection which they chose not to do for any of the applicants. Thus, the fact that they did not carry out inspection for any of the applicants removes any claim that may be made by the petitioner regarding any arbitrary or mala fide action on behalf of the respondents.
The Bench remarked that the writ Court is not required to find fault of the authorities with a magnifying glass rather the Court should examine the decision-making process and also leave room for interpretation of the contract by the authorities.
The Court said that the petitioners have failed to establish that the action of the authorities was contrary to public interest and within the realm of discrimination and unreasonableness. Thus, the writ petition cannot be entertained.
[Dynamic Infracon Pvt. Ltd v. State of Uttar Pradesh, 2024 SCC OnLine All 5010, decided on 06-09-2024]
Judgment Authored by: Justice Shekhar B. Saraf
