P. K. MOHANTY, J. ( 1 ) THE writ petitioner, M/s Mitsui Babcock Energy (India) Pvt. Ltd. assails the impugned letter under Annexure-6 of opp. party No. 5 on behalf of M/s. National Aluminium Company Limited (in short "nalco") opp. party No. 3 intimating therein that purchase preference shall be given to the Public Sector undertakings in terms of the Government of India Policy and, therefore, the petitioner may re-quote their price by 5. 00 P. M. of 18-11-1999, failing which the price quoted earlier shall be taken into consideration for award of the work. ( 2 ) THE undisputed factual backdrop of the case, as revealed from the pleadings and the submissions made by the learned counsel for the parties are M/s. NALCO (Opp. party No. 3) through its consulting Engineers, opp. party No. 5, M/s. M. N. Dastur and Co. issued a global notice inviting tenders under international competitive bid from eligible bidders for expansion of Captive power Plant at Angul for addition of 120 MW set (7th Unit ). Bidders scope included design, manufacture, supply, erection, testing and commissioning of Main Power House Package. In terms of the Clause 2 of the notice inviting tender (N. I. T.), the sealed bids were to be submitted in three parts, namely; Part I - Pre assessment bid, Part II, - Technical and Commercial (un priced) bid, and Part III - price bid. The NIT itself indicated that it was proposed to hold pre bid conference from 10-11-1998 to 13-11-1998, but exact date was to be notified latter. Submission of pre-assessment bid was obligatory on the part of the tenderers in terms of clause-2 of the NIT and it was also stipulated that only bids of tenders who meet specific requirement and eligibility criteria of Part-I shall be considered for further evaluation and NALCO reserved its right to reject any tender without assigning any reason whatsoever. There were seven participants in the pre-bid conference including the petitioner. Subsequent to the pre-bid conference, the parties were asked to submit their technical (commercial) unpriced bid. On scrutiny of the bid submitted by the bidders, only three parties remained in the zone of consideration, including the petitioner and opp. party No. 4 and one Chinese company who is not a party to this petition. Subsequent to the pre-bid conference, the parties were asked to submit their technical (commercial) unpriced bid. On scrutiny of the bid submitted by the bidders, only three parties remained in the zone of consideration, including the petitioner and opp. party No. 4 and one Chinese company who is not a party to this petition. The aforesaid parties were directed to submit their price bids by quoting their bid price considering the fact that the price negotiation shall be held with the lowest tenderer only as per letter issued by opp. party No. 5, the consultant of opp. party No. 3 vide Annexure-4. The letter in Annexure-4 required the bidder to re-quote their lowest price since price negotiation if required may be held with the lowest tenderer only. Pursuant to the letter under Annexure-4, the petitioner company and opp. party No. 4 gave their price bids after which opp. party No. 3 opened the Techno Commercial (unpriced bid) and evaluated the capacity and capability of the bidders in execution of the project. Because of the changes in the specification as suggested by opp. party No. 3 during the techno commercial bid and keeping in mind the change in the economic policy and the change of foreign exchange rate, opp. party No. 3 directed the petitioner and opp. party No. 4- Company to submit their revised price bids by 3-5-1999 vide Telefax dated 26-4-1999 (Annexure-5 ). The petitioner as well as opp. party No. 4 submitted their revised price bids. When the matter stood thus, opp. party No. 3 issued a letter dated 25-10-1999, a copy of which is Annexure-6 to the writ petition directing the petitioner-Company and opp. party No. 4, which is a public sector undertaking to submit a fresh price bid by 18-11-1999 on the ground that the opp. party No. 3 has decided to give 10% purchase preference to the public Sector Undertakings in terms of the Government Policy. ( 3 ) THE petitioner-Company is aggrieved by the aforesaid letter under Annexure-6, since the price preference clause has not been indicated in the NIT and for the first time it was sought to be introduced by the said letter. In the meantime, as per letter under Annexure-6, opp. ( 3 ) THE petitioner-Company is aggrieved by the aforesaid letter under Annexure-6, since the price preference clause has not been indicated in the NIT and for the first time it was sought to be introduced by the said letter. In the meantime, as per letter under Annexure-6, opp. party No. 4 submitted its requoted price, but the petitioner did not and, therefore, in terms of the said letter, the earlier quoted price dated 3-5-1999 of the petitioner as well as the requoted price of opp. party No. 4 was opened on 19-11-1999. on comparison and evaluation of the price quoted by the parties, it transpired that the petitioner had quoted Rs. 299. 01 crores whereas the price for the project quoted by opp. party No. 4 was Rs. 248. 16 crores. Thus, the price quoted by the petitioner was about Rs. 50 crores higher than opp. party No. 4. But in any case, the price preference in terms of Annexure-6 was not required to be given, the quoted price of opp. party No. 4 being lowest. ( 4 ) THE tenders as per the NIT were to be submitted in three parts; i. e. pre-assessment bid, Technical and Commercial (unpriced) bid and price bid. A pre-bid conference was held on 18th and 19th November, 1998 at the Bhubaneswar office of opp. party No. 3. A copy of the proceeding of the prebid conference has been annexed as Annexure-3 to the writ petition. The petitioner appears to have raised a query as to whether any price/purchase preference is to be given to any party. The opp. parties 3 and 5 answered saying that, this shall be dependant upon the directives of the Government of India at the time of finalisation of the tender. ( 5 ) THE main thrust of argument of Sri Y. Das, learned Senior Advocate for the petitioner-Company is that in absence of a specific clause in the NIT to give price preference to the Public Sector Undertakings, issuance of Annexure-6 requiring the tenderers including the petitioner to requote their price on the plea that opp. party No. 3 has decided to give 10% purchase preference to the Public Sector Undertakings, is wholly without jurisdiction and has caused prejudice and injustice to the petitioner. party No. 3 has decided to give 10% purchase preference to the Public Sector Undertakings, is wholly without jurisdiction and has caused prejudice and injustice to the petitioner. The further contention is that the price preference otherwise could not have been given at a belated stage, a year after the NIT was issued. Alternatively, it has been argued that even if such an opportunity could be given for requoting the price, it could only be given to the petitioner, who is a party prejudiced. The learned counsel submitted that without prejudice to the first contention that Annexure-6 could not have been given at all, the opportunity to requote the price could only be given to the petitioner and thus, the question of considering the second price bid of opp. party No. 4 would arise upon the revised price bid, if given by the petitioner only. ( 6 ) SRI G. Rath, learned Senior Advocate appearing for opp. party No. 3, NALCO submits that the contentions made on behalf of the petitioner are felacious inasmuch as the petitioner was aware that the price preference would be given to the PSUs, since on the query of the petitioner itself during the prebid conference, opp. party No. 3 replied that the price preference would be dependant upon the directions of the Government of India at the time of finalisation of the tender. It is, thererfore, submitted that the petitioner was having full knowledge of the matter and as such, there is no reason for the petitioner to challenge the impugned notice under Annexure-6. The learned Senior Counsel submits that by issuing notice inviting tender (NIT) no right has been created in favour of any tenderer either to be awarded the contract or to compel the owner NALCO to process the tenders submitted by the parties in a particular manner. The tenderers have neither acquired any statutory or contractual right until final decision is taken in favour of any of the parties and the contract is awarded. At the intermediate stage, no tenderer is entitled to seek the intervention of this Court and obtain any relief in regard to the process of assessment of the tenders. The tenderers have neither acquired any statutory or contractual right until final decision is taken in favour of any of the parties and the contract is awarded. At the intermediate stage, no tenderer is entitled to seek the intervention of this Court and obtain any relief in regard to the process of assessment of the tenders. Sri Rath has taken exception to the submission of the learned counsel for the petitioner that the intimation given to the tenderers vide letter dated 25-10-1999 (Annexure-6) has not been made bona fide but for collateral purposes i. e. to implement purchase preference policy issued by the Government of India, since according to the learned counsel, implementation of the Government policy in extending price/purchase preference in favour of the public sector undertakings cannot be construed to have been emanated for any collateral purposes. According to the learned counsel, the minutes of pre-bid conference annexed by the petitioner as Annexure-3 would itself indicate that the petitioner was well aware of the Government policy before submitting its price bid, but however, being apprehensive that the petitioner may raise dispute in future in regard to the applicability of the price purchase preference policy, NALCO issued the letter vide Annexure-6 to keep the tenders appraised of the applicability of the purchase preference policy pronounced by the Government of India. Although, an opportunity was given to the writ petitioner as well as the public sector undertaking (opp. party No. 4), the petitioner did not avail of the opportunity, while the opp. party No. 4 submitted a revised price bid and, therefore, the petitioner is not entitled to contend that its earlier price-bid of 3-5-1999 should be compared with the earlier price-bid of BHEL and not their revised price bid of 18-11-1999. It is submitted that the latest price bids of both the parties were opened on 18-12-1999 and it was found on proper evaluation that BHEL-opp. party No. 4 was the lowest tenderer, its quoted price being Rs. 248. 16 crores, whereas the price quoted by the writ petitioner was Rs. 299. 01 crores, which makes a huge difference of more than Rs. 50 crores. The price quoted by opp. party No. 4, a public sector undertaking being substantially lower than the petitioner by more than Rs. 248. 16 crores, whereas the price quoted by the writ petitioner was Rs. 299. 01 crores, which makes a huge difference of more than Rs. 50 crores. The price quoted by opp. party No. 4, a public sector undertaking being substantially lower than the petitioner by more than Rs. 50 crores, the question of applying the purchase preference policy did not arise at all and, therefore, this issue at best is an academic issue at the moment. In any event, it is the submission that purchase preference policy, a copy of which is Annexure-A/3 to the counter affidavit is legally and constitutionally valid and does not seek to create a monopoly in favour of public sector undertaking by an administrative order nor does it violate the right of business of the petitioner guaranteed under Article 19 (1) (g) or Article 19 (6) of the Constitution of India. ( 7 ) SRI B. K. Mohanty, learned Senior Advocate appearing for opp. party No. 4-Bharat Heavy Electricals Limited, while adopting the stand and submissions made on behalf of opp. party No. 3, emphasises that on the pre-bid conference held on 18th and 19th November, 1998, the petitioner company enquired as to whether the price/purchase preference to the public sector undertaking is to be given and the answer having been given that such preference will be dependant on the directions of the Union Government at the time of finalisation of the contract, the petitioner cannot take the plea that it was not aware of the price preference to the P. S. U. s. The learned counsel has high-lighted that even the date schedule in the NIT were not adhered to at the request of the petitioner and the variation of the dates as well as the bid was allowed and, therefore, the petitioner cannot claim that any variation even without touching the merit of the matter should be viewed seriously. The learned counsel further submits that the petitioner having not submitted his re-quoted price, the owner had to open the same along with the re-quoted price of opp. party No. 4, since it was specifically indicated in Annexure-6 itself that in case the petitioner does not submit the re-quoted price, its earlier quotations shall be considered. The learned counsel further submits that the petitioner having not submitted his re-quoted price, the owner had to open the same along with the re-quoted price of opp. party No. 4, since it was specifically indicated in Annexure-6 itself that in case the petitioner does not submit the re-quoted price, its earlier quotations shall be considered. Since equal opportunity was given to all the tenderers to submit their re-quoted price in view of the Government decision extending the price/purchase preference to the public sector undertaking, no exception can be taken to the decision of the authorities. Mr. Mohanty submitted that in view of the difference in the price quoted by the petitioner as well as by opp. party No. 4 to the tune of Rs. 50 crores, necessity did not arise for extending the preference in price and thus, since the owner, NALCO, a public sector undertaking substantially gains by Rs. 50 crores, if it allows opp. party No. 4, a public sector unit to work out the contract, the petitioner cannot claim that the contract should be allotted in their favour whereby a loss of Rs. 50 crores shall be incurred by the NALCO. ( 8 ) SRI Y. Das, learned counsel for the petitioner has relied on the decision of the Apex Court in Ramana Dayaram Sheetty v. International Air Port Authority reported in AIR 1979 SC 1628 . The Apex Court in the said judgment observed that where the Government is trading with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in confirmity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licences etc. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licences etc. , must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. What the Apex Court was considering in the aforesaid case was whether in view of the stipulation in the tender call notice inviting sealed tenders from Registered Class-II hoteliers having at least five years' experience for putting up and running a Second Class Restaurant and snack bars at the Air Port, the tender from a person without having the requisite eligibility could be considered and the tender could have been accepted. The question involved in the present case is not a question of eligibility of acceptance of a tender from an ineligible person. Both, the petitioner as well as the opp. party No. 4 have been found to be eligible after due consideration of their respective merits. But what is being disputed is whether a price preference in terms of Government Policy could be extended after publication of the NIT, allowing revised bid by extending the time beyond the date mentioned in the NIT and as such, this decision is of no avail to the contention raised. ( 9 ) A reference has been made to the case in Tata Cellular v. Union of India, AIR 1996 SC 11 . In that case the Apex Court observed that the Court's concern should be, whether a decision-making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable Tribunal would have reached or abused its powers. The Apex Court in the said judgment has laid down that it is not in the Court to determine whether a particular policy or particular decision taken in the fulfilment of the policy, is fair. It is only concerned with the manner/process in which those decisions have been taken. The extent of duty to act fairly will vary from case to case. It is only concerned with the manner/process in which those decisions have been taken. The extent of duty to act fairly will vary from case to case. The questions involved in the present case are quite different and hence, this decision is not applicable to the facts of the present case. ( 10 ) THE learned counsel strongly relies on the decision in Shri Harmindar Singh v. Union of India reported in AIR 1986 SC 1527 . The observation of the Hon'ble Apex Court at paragraph-19 thereof is brought to our notice, wherein it is observed that if the terms and conditions of the tender have been incorporated in the tender notice itself and that did not indicate any preference of giving 10 per cent price preference to Government undertaking, the authority concerned could not have extended the benefit to Respondent No. 4. The Hon'ble Apex Court observed that if the appellant had known that 10 per cent price preference to Government undertaking was to be given to Respondent No. 4 the appellant would have taken every precaution while submitting the tender and, therefore, if the authorities chooses to invite tenders then it must abide by the result of the tender and cannot arbitrarily and capriciously accept the bid of a respondent although it was much higher and detriment to the interest of the State. The decision was rendered in the context that the tender was invited for supply of "fresh buffalow and cow milk, but the tender was submitted by the Government Milk Scheme for supply of pasturised milk" and not for fresh milk, whereas the Respondent No. 4 therein who was long since supplying the milk filed his tender for supply of the fresh milk as required under the tender notice and as such, a tender could not have been accepted. The Apex Court took note of the fact that allotting tender in favour of the Government Milk Scheme would not only be contrary to the NIT, but would cause a net loss of Rs. 10 lakhs to the owner which is against public interest and on such consideration it was held that in absence of a stipulation in the NIT preference could not be granted. The reasoning for the decision was that, had other tenderer known about the price preference, they could have taken precaution while filing the tender. 10 lakhs to the owner which is against public interest and on such consideration it was held that in absence of a stipulation in the NIT preference could not be granted. The reasoning for the decision was that, had other tenderer known about the price preference, they could have taken precaution while filing the tender. In other words in case of a change in policy, equal opportunity ought to be given to all the parties to modify or revise their tender. ( 11 ) THE learned counsel for the petitioner then referred to the decision in Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. , reported in (1996)10 JT (SC) 419. The fact of the case was totally different inasmuch as the Apex Court in that case held that in absence of a stipulation in the tender notice that the viability range is to be assessed nor did it say that only the tenders coming within the viability range will be considered and, therefore, the exercise of determining the viability range and calling upon Dutta Associates to make a counter offer on the alleged ground that he was the lowest tenderer among the eligible tenderers, was held to be outside the tender notice. The Apex Court in the said judgment has clearly observed that fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender and, therefore, this decision is of no avail to the petitioner's case. The learned counsel has also referred to the decision in Paruchuri Vasu v. The General Manager, 7 Star Buildings, Telecom, Vijaywada, A. I. R. 1998 A. P. 154 and Steel Crakers v. M. S. T. C. AIR 1992 Cal 86 in which following the decision of the Apex Court in Dutta Associates case it was held that whatever procedure the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. A reference has also been made to the decision of this court in B. Rajkumar Patra v. Union of India, reported in AIR 1981 Orrisa 143 wherein it has been held that there is no justification for accepting the tender which does not satisfy the clear requirement of the notice inviting tender. A reference has also been made to the decision of this court in B. Rajkumar Patra v. Union of India, reported in AIR 1981 Orrisa 143 wherein it has been held that there is no justification for accepting the tender which does not satisfy the clear requirement of the notice inviting tender. Reliance has been placed on another judgment of the Apex Court in Raunaq International Limited v. I. V. R. Construction Ltd. (1998) 8 JT (SC) 411 : (1999 AIR SCW 53) which lays down that where the decision making process has been structured and the tender conditions set out the requirements, the Court is entitled to examine whether, these requirements have been considered. however, if any relaxation is granted for bona fide reasons, the tender conditions permit such relaxation and the decision is arrived at for legitimate reasons after fair consideration of all offer, the court should hesitate to intervene. ( 12 ) SRI G. Rath, the learned Senior Advocate for the opp. party No. 3 has referred to the decision in Indian Drugs and Pharm. Ltd. v. Punjab Drugs Manufacturers Association, AIR 1999 SC 1626 in support of his submission. In the aforesaid case the decision of the Punjab Government directing the purchasing authorities to purchase certain medicines used in the Government hospitals and dispensaries from public sector manufacturers only was upheld and it was held that the drug manufacturers' right under Art. 19 (1) (g) of the Constitution and the equality clause enunciated under Art. 14 of the Constitution cannot be said to have been violated by such a decision. It was observed that special consideration shown to a Public Sector Undertaking was in public interest and, therefore, cannot be characterised as either collateral purpose or illegitimate purpose. It was observed that special consideration shown to a Public Sector Undertaking was in public interest and, therefore, cannot be characterised as either collateral purpose or illegitimate purpose. ( 13 ) A reference may be made to the decision of the apex Court in State of Uttar Pradesh v. Vijaya Bahadur Singh, AIR 1982 SC 1234 wherein the apex Court has held that where the conditions of auction of forests lots inter alia provided that the Government was under no obligation to accept the highest bid and that no rights accrued to the bidder merely because his bid happened to be the highest, and that the acceptance of bid at the time of auction was entirely provisional and was subject to ratification by the competent authority, namely, the State Government, the Government's power to refuse to accept the highest bid could not be confined to inadequacy of bid only. There may be a variety of good and sufficient reasons, apart from inadequacy of bids, which may impel the Government not to accept the highest bid. The Government may change or refuse its policy from time to time and the change of policy by the Government subsequent to the auction but before its confirmation, can be a sufficient justification for the refusal to accept the highest bid. It was held that the Government had the right to change the policy from time to time according to the demand of time and situation and in the public interest. ( 14 ) IN the case of Union of India v. Hindusthan Development Corporation, AIR 1994 SC 988 , the Apex Court held that a party issuing the tender has the right to rigidly enforce them, but it is not the law that the owner cannot deviate these guidelines at all in any situation, but that any deviation, if made, should not result in arbitrariness or discrimination. ( 15 ) A reference has also been made to the decision in M/s. G. J. Fernandez v. State of Karnataka, AIR 1990 SC 958 , wherein the Apex Court has held that the party issuing the tender has the right to rigidly enforce them, but it is not the law that the owner cannot deviate these guidelines at all in any situation, but any deviation, if made, should not result in arbitrariness or discrimination. It comes in for application where a confirmity of that or relaxation from the prescribed standard results in substantial prejudice or injustice to any of the parties involved or to public interest in general. Changes or relaxation would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. A relevant portion of the observation at para 16 of the judgment of the Apex Court may be quoted hereunder :"it is true that the relaxation of time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But, we are inclined to agree with the respondent's contention that while the rule in Ramana's case AIR 1979 SC 1628 (supra) will be readily applied by Courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only to gain immunity from competition. Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits. The appellant had no doubt also urged that the MCC had no experience in this line of work and that the appellant was much better qualified for the contract. The comparative merits of the appellant vis-a-vis MCC are, however, a matter for the KPC (counselled by the TCE) to decide and not for the Courts. We were, therefore, rightly not called upon to go into this question. The comparative merits of the appellant vis-a-vis MCC are, however, a matter for the KPC (counselled by the TCE) to decide and not for the Courts. We were, therefore, rightly not called upon to go into this question. " ( 16 ) THE learned counsel has referred to the case in State of M. P. v. Nandlal Jaiswal, AIR 1987 SC 251 , wherein the Apex Court, while adjudicating the constitutional validity of an Executive decision relating to economic matters, observed that certain measure of freedom or play in the 'joints' to the executive, should be allowed. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. ( 17 ) SRI Rath has placed the decision in Raunaq International Limited v. I. V. R. Construction Ltd. (1998) 8 JT (SC) 411 : AIR 1999 SC 393 , which has also been referred to by the learned counsel for the petitioner. The Apex Court in the said judgment has observed that the Court should be reluctant to interfere with the dispute between two private tenderers unless the dispute involved violation of public interest. Paragraph 9 of the aforesaid judgment may be quoted hereunder :"the award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be (1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. These would be (1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality, (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. "the Apex Court in paragraph 11 thereof has observed as under :"when a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saying which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saying which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the Court should not intervene under Art. 226 in disputes between two rival tenderers. " ( 18 ) THE Hon'ble Supreme Court however held that there are inherent limitations in the exercise of that power of judicial review and the right to choose cannot be considered as an arbitrary power, if these powers are exercised, without any collateral purpose, the exercise of that power will not be struck down. ( 19 ) IN the case at hand, it is not disputed that the N. I. T. expressly provided for a pre-bid conference which in fact was held on 18th and 19th November, 1998 for explaining and clarifying doubts in regard to the bids to be submitted by the intending tenderers. The petitioner-company made a query with regard to price/purchase preference for P. S. Us. and it was informed that the preference will depend on the Government Policy at the time of finalisation of the tenders. The NALCO/opp. party No. 5 intimated vide Annexure-6 to all the tenderers that the price preference to public sector undertakings shall be applicable and as such, the parties were given option to re-quote their price if they so desire. The letter also indicated that if no revised tender or revised price bid was submitted by 5 p. m. of 18-11-1999, it will be taken that they have no revised bid to offer and as such their earlier price bids will be taken into consideration. The petitioner-company undis-putedly did not submit the revised price bid. A question has been raised that in absence of a term in the NIT, it subsequently cannot be altered or modified. However, we are not able to appreciate the submission that the owner or the party inviting tender cannot alter the terms or manner of appraisal of the tender or time of submission of the tender before its finalisation. A question has been raised that in absence of a term in the NIT, it subsequently cannot be altered or modified. However, we are not able to appreciate the submission that the owner or the party inviting tender cannot alter the terms or manner of appraisal of the tender or time of submission of the tender before its finalisation. In the tender notice itself, right was reserved by the owner to assess the capability and capacity of the bidders and right was also reserved to reject all or any of the bids at their discretion without assigning any reason. As discussed in the foregoing paragraphs and in view of the settled principle of law laid down by the decisions of the Apex Court referred to supra, the party inviting tender has the right to change the policy or the criteria of selection subsequent to the notice inviting tender but before its confirmation. But however, reservation or restriction should not be arbitrary and must be justifiable on the basis of some policy or valid reasons, which are reasonable and not discriminatory, inasmuch as, the benefits are to be extended to all. If, however, the changes of relaxation are extended to some and denied to others, the same is not sustainable. ( 20 ) A schedule of dates has been fixed under Clause 5. 4 of the NIT (Annexure-I) for pre-assessment bid, technical and commercial bid (unpriced) and priced bid. However, those dates were not followed because of the several extensions granted to the tenderers. The petitioner-company submitted its original offer on 27-1-1999. Revised bids were filed by the petitioner-company on 29-3-1999 and a further revised bid in May, 1999. The initial price bid was submitted after the letter dated 21-12-1998 (Annexure-4) beyond the stipulated date, since it was indicated in the letter that the lowest tenders shall be considered for negotiation and as such, the bidders should quote their price considering the fact that the pre-negotiation will be required to be held on the lowest tenders only. The second revised quotation appears to have been filed by the petitioner-company pursuant to Annexure-5, the letter dated 26-4-1999, which according to the petitioner was necessitated because of the change in the Government Policy and the rates. The second revised quotation appears to have been filed by the petitioner-company pursuant to Annexure-5, the letter dated 26-4-1999, which according to the petitioner was necessitated because of the change in the Government Policy and the rates. Thus, it is apparent that for some reason or other and because of the change in the Government Policy, the tenderers were allowed extension of time to submit and resubmit their tenders beyond the stipulated date mentioned in the NIT and as such, the time schedule as per the NIT has not been scrupulously followed. The petitioner has on more than one occasion requoted its price for the reasons stated therein and as such, it is not a case, where the owner has not modified or deviated the schedule and terms of the NIT nor it is a case where the petitioner was protested against such a deviation prior to issue of Annexure-6. ( 21 ) THE impugned Annexure-6 was issued on 25-10-1999 extending the time for submission of tender giving equal opportunity to all parties when undisputedly the price bids submitted by the tenderers including the petitioner has not been opened nor the tender had been finalised. The petitioner company had thus, not acquired any indefeasible right excepting the right for a fair consideration of its tender in terms of the NIT, proceedings of the pre-bid conference, a copy of which is Annexure-3 indicate that the petitioner-company was aware of a possible grant of purchase preference in favour of the Public Sector Undertakings and since the only P. S. U. in the zone of consideration was opp. party No. 4, in his favour. The petitioner company had submitted its price bid after the pre-bid conference and necessarily, therefore, being conscious of a possible price preference it would have been cautious while quoting its price. Letter under Annexure-6 dated 25-10-1999 appears to have been issued pursuant to the letter dated 22-9-1999, Annexure-9 of the Government of India indicating that the policy decision of the Government is to be extended to the Public Sector Undertakings. Law is well-settled that the owner or the agency inviting tender has the right to modify or deviate from the tender notice provided however, the deviation or alteration is not for a co-lateral purpose or mala fide. Law is well-settled that the owner or the agency inviting tender has the right to modify or deviate from the tender notice provided however, the deviation or alteration is not for a co-lateral purpose or mala fide. What has been sought to be introduced in Annexure-6 is the price preference in favour of the Public Sector Undertakings and opportunity has been granted to the tenderers to requote their price, keeping in view the 10% purchase preference in favour of the P. S. Us. From the proceedings of the pre-bid conference, it can fairly be said that the petitioner was aware of a price preference in favour of the P. S. Us, inasmuch as, a further opportunity had been granted to the tenderers under Annexure-6 to requote their price to be within the competition. If equal opportunity was extended to both the tenderers i. e. the petitioner-company and opp. party No. 4, the petitioner-company can hardly complain of a discrimination, inasmuch as, it is not a case where one party is given undue advantage over the other. It may also be reiterated that the petitioner does not challenge validity or constitutionality of the decision of the Government to extend the privileges in favour of the Public Sector Undertakings. ( 22 ) THEN the question is, whether the decision of the owner to extend the price preference to the Public Sector undertakings was for a valid reason or for a co-lateral purpose. The petitioner does not challenge the legality or validity of the decision to extend the price/purchase preference to the Public Sector Undertaking. But what is challenged is that the purchase preference could not be extended after the NIT was issued in absence of such a clause therein. In the case of Union of India v. Hindustan Development Corporation ( AIR 1994 SC 988 ) (supra), the Apex Court observed that the action of the Government should not be arbitrary, irrational or irrelevant, and in the matter of awarding of contract invitation of tenders is considered to be one of the fair ways. But if there are any reservation, or restrictions, then they should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which are reasonable and not discriminatory. But if there are any reservation, or restrictions, then they should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which are reasonable and not discriminatory. In M/s. G. J. Fernandez v. State of Karnataka ( AIR 1990 SC 958 ) (supra) also, the Apex Court observed that the party issuing the tender has the right to punctiliously and regidly enforce them, but if any deviation is made, it should not result in any arbitrariness or discrimination. Similarly, in State of M. P. v. Nandlal Jaisawal ( AIR 1987 SC 251 ), discussed earlier, the observation of the Apex Court is that in the complex economic matters every decision is necessarily empiric and it is based on experimentation or that one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid consideration or on the application of any strait jacket formula. The Court must, while adjudging the constitutional validity or an executive decision relating to economic matters grant a certain measure of freedom or play in the 'joints' to the executive. The Court cannot strike down a policy decision taken by the State Government, merely because, it feels that another policy decision would have been fairer or wiser or more scientific or logical. A conspectus of the decision unerringly leads to a conclusion that a policy to extend price preference to a Public Sector Undertaking, would be in public interest and cannot be characterised as for a co-lateral purpose as contended. ( 23 ) THE Government policy extending the price/purchase preference in favour of the Public Sector Undertakings was also existing prior to the issue of NIT. The petitioner-company was aware of the policy inasmuch as a positive opportunity was given to the petitioner-company as well as opp. party No. 4 to requote its price, because of the decision to extend the Government policy in the present case also, but the petitioner did not take advantage of the opportunity given under Annexure-6. If for the reasons, the dates of bids have been extended time and again and according to the extended dates, the petitioner-company as well as the other bidders have taken advantage and re-submitted their tender, it does not stand to reason as to why, if another extension or opportunity is given to the parties to requote their price, an exception should be taken. In Raunaq International v. I. V. R. Construction Ltd. (AIR 1999 SC 399) (supra), the Apex Court observed that the Court should be reluctant to interfere in a dispute between two private tenderers unless the dispute involved violation of public interest. In Harminder Singh's case ( AIR 1986 SC 1527 ) (supra), the Hon'ble Apex Court held in absence of a clause in the NIT, the price preference to Public Sector Undertakings was illegal, but what weighed with the Court was, had the appellant known the price preference before quoting its pirce, he could have taken precaution while quoting the rates. In other words, the Apex Court observed that by allowing price preference at a subsequent stage of NIT without allowing opportunity to all tenderers, the appellant did not have a choice to quote the price differently keeping in view the price preference in favour of the P. S. Us. In the present case, the petitioner-company was by Annexure-6 afforded an opportunity to requote its price in view of the policy, but it did not take advantage of the opportunity and, therefore, the petitioner otherwise cannot complain of any prejudice because of the price preference or extension of time. ( 24 ) IT is further to be noted that both the petitioner company as well as opp. party No. 4 on scrutiny and evaluation have been found to be eligible and have satisfied the conditions to participate in the tender. Eligibility of opp. party No. 4 has also not been challenged inasmuch as now it has been found after opening of the requoted bid that the offer of opp. party No. 4 was Rs. 248. 16 Crores as against Rs. 2. 99. 01 Crores quoted by the petitioner, which is Rs. 50 Crores less than the petitioner's company. It must be also remembered that the owner NALCO is a Public Sector Undertaking and if it accepts a tender of a party found eligible, which is Rs. 50 Crores less than the other, the owner cannot be faulted if it prefers a Public Sector Undertaking which has quoted a lesser rate in the public interest. Opp. party No. 4 M/s. Bharat Heavy Electricals Limited, a Public Sector Undertaking having quoted a lesser price than the petitioner's company, it is stated that the purchase preference in terms of the Government of India Policy is not required to be extended in its favour. Opp. party No. 4 M/s. Bharat Heavy Electricals Limited, a Public Sector Undertaking having quoted a lesser price than the petitioner's company, it is stated that the purchase preference in terms of the Government of India Policy is not required to be extended in its favour. The contention of the learned counsel for the petitioner that the opportunity, if any, for requoting the price could only be given to the petitioner and only after, it had quoted the price, the bid could have been opened and compared, is fallacious and has to be rejected. If the owner wants to effect any change in the conditions or criteria stipulated in the NIT, it has to be fair in allowing all the tenderers to requote their price, inasmuch as if for some reason, the petitioner does not requote the price in spite of notice, there is no logic why the bid of the other tenderer shall not be opened. In any event, since the petitioner-company did not choose to submit its revised price bid pursuant to Annexure-6, in terms thereof, its earlier bid had rightly been taken into consideration. ( 25 ) THE petitioner-company as well as opp. party No. 4 both having been found eligible and competent to execute the work and if opp. party No. 4, a Public Sector undertaking, has quoted a rate Rs. 50 Crores less than the petitioner, a writ Court otherwise would not interfere in the award of the contract when there is no arbitrariness or preferential treatment and the award of contract to BHEL is in public interest. In any view of the matter, we do not find any merit in the writ petition, which is dismissed as such. But in the circumstances, there shall be no order as to costs. ( 26 ) P. K. MISRA, J. , I agree. Petition dismissed.