A. S. NAIDU, J. ( 1 ) IN these two Original Jurisdiction Cases, the decision of the Government to award the work of "construction of Kurubella M. I. P. (construction of earth dam. Head Regulator and Surplus escape)" in Raighar Block of Nawarangpur district in favour of opp. party No. 7 is challenged. As common question of law and facts are involved, we propose to dispose of them by this common judgment. ( 2 ) TENDER Call Notice No. 4 dated 15-10-99 was published inviting tenders for the work of construction of Kurubella M. I. P. from eligible special class contractors by the Department of Water Resources. The Tender Notice clearly stipulated the eligibility criteria as well as qualifying requirements of the intending bidders. In response to the Tender Call Notice as many as 16 tenders were received by the Department. Admittedly, Shri S. C. Swain, the petitioner in O. J. C. No. 12738 of 2001 was the lowest tenderer. Shri D. K. Singh, opp. party No. 7 in both the cases was the second lowest bidder and Shri Debendranath Balabantaray, the petitioner in O. J. C. No. 9193 of 2001 was the third lowest tenderer (for the sake of brevity, they are referred as (L-1, L-2 and L-3 respectively hereinafter ). ( 3 ) AFTER scrutiny of the tenders and after analysis of the rates quoted by different tenderers, the Tender Committee in its meeting held in the Chamber of the Commissioner-cum-Secretary, Department of Water Resources, on 21-11-2000, arrived at a conclusion that L-1 has no experience in executing the Minor Irrigation Project such as Earth Dam and Spillway and did not possess adequate machineries which are essential for construction of Earth Dam and Spillway and as such, his offer cannot be considered for awarding the work. So far as L-2 is concerned, the Committee observed that apart from the fact that he has quoted abnormally low rates in respect of certain items, he has also not submitted analysis in respect of his quoted rates. It was also observed that though he was called upon to supply the analysis, he has become non-responsive by not submitting the analysis. It was also observed that though he was called upon to supply the analysis, he has become non-responsive by not submitting the analysis. So far as L-3 is concerned, it is observed that he has submitted the analysis of rates in respect of all the items quoted and has also stated that he is having a vast establishment with machineries, manpower and all assets for completion of the work. The Tender Committee recommended to the Government to award the work in favour of L-3 at his quoted amount of Rs. 1,03,88,390. 53 being 13% less than the amount put to tender. ( 4 ) WHILE the matter stood thus, L-2 submitted a representation before the state Government stating that he has already submitted analysis, he possesses the required machineries and manpower and he is sitting idle due to want of work and he can immediately commence the work. It is further stated that he has already submitted the application in proper form for renewal of his licence and the same is under consideration and that the work should be awarded to him. Considering the written submissions of L-2, the matter was directed to be placed before the Tender Committee once again. In course of discussion, the Tender Committee in its meeting held on 7-2-2001, observed that as the Licence of L-2 was not valid at the time of consideration of tender, his case cannot be considered and accordingly, the Committee rejected the application of the bidder and reiterated their earlier recommendation to award the work in favour of L-3. Thereafter, an appeal was filed by L-2, inter alia,bringing to the notice of the State Government that in fact, on the date of tender, his special class Licence was valid and subsequently, the same has already been renewed. It is submitted that rejection of his tender by the Committee held on 7-2-2001 only on the ground that his licence was not valid on the date of submission of tender, is not correct. The Government after receipt of the representation/appeal of L-2, directed the Tender Committee to consider whether the Special Class Contractors Licence of L-2 had been renewed or not. On scrutiny, the Tender Committee found that the licence of L-2 was valid on the date of submission of the Tender and that in the meantime, the same has been renewed. The Government after receipt of the representation/appeal of L-2, directed the Tender Committee to consider whether the Special Class Contractors Licence of L-2 had been renewed or not. On scrutiny, the Tender Committee found that the licence of L-2 was valid on the date of submission of the Tender and that in the meantime, the same has been renewed. It is pertinent to mention here that all the three tenderers i. e. L-1, L-2 and L-3 in the meanwhile had extended the validity of their quoted rates for the work till acceptance by the competent authority and until issuance and signing of the agreement. In the instant case, the rates quoted by L-1, L-2 and L-3 tenderers are as follows : @@ si. No. Name of the tenderer offered amount of the tender % excess/less over the estimate Rs. 1,19,58,754. 67 relative position 1 2 3 4 5 1. S. C. Swain (Petitioner in OJC 12738 of 2001)rs. 1,00,59,446. 67 15. 88% less i 2. D. K. Singh (Opp. Party No. 7 in both the writ petitions.)rs. 1,02,00,723. 20 14. 70% less ii 3. D. N. Balabantaray (Petitioner in OJC 9193/01)rs. 1,03,88,390. 53 13. 13% less iii @@ ( 5 ) MR. Mishra, learned counsel for the petitioner in O. J. C. No. 9193 of 2001, who was the third lowest bidder, submitted that the Tender Committee having found that L-2 has quoted abnormally low rates; has not furnished the analysis of rates, is non-responsive and had not submitted the list of machineries as mandatorily required in terms of the Tender Call Notice, his case should be excluded from the arena of consideration, so also the case of L-1, who, according to the Tender Committee possessed neither experience nor machineries. After rejecting the aforesaid two tenders, the Government should have accepted his tender, in consonance with the initial recommendation of the Tender Committee and the direction issued by the Government to reconsider the case of L-2 is otherwise unjust, illegal and amounts to giving opportunity to fill up the lacuna. ( 6 ) MISS Nanda, learned counsel for the petitioner in O. J. C. No. 12738 of 2001, the first lowest tenderer, submitted that as the offer made is the lowest, in fitness of things, the same should have been accepted. Mr. Mishra, learned counsel for opp. ( 6 ) MISS Nanda, learned counsel for the petitioner in O. J. C. No. 12738 of 2001, the first lowest tenderer, submitted that as the offer made is the lowest, in fitness of things, the same should have been accepted. Mr. Mishra, learned counsel for opp. party No. 7 (L-2) submitted that the Committee has committed errors apparent on the face of records inasmuch as he has the machinery and manpower which is idle due to want of work and that his licence has been renewed in the meanwhile. Being the second lowest bidder, his case should have been recommended. It is stated that after realising the mistake the Tender Committee has rightly recommended his case on reconsideration. ( 7 ) MR. Nayak, learned Government Advocate, on the other hand submitted that the Tender Committee, which consists of experts having special knowledge, after threadbare scrutiny of the documents available, rates quoted and other materials, finally recommended the name of L-2, which was accepted by the Government and such decision being not tainted with any mala fide, should not be interfered with. It is further submitted that the work is a time-bound programme financed by the World Bank and unless the same is commenced immediately, there would be great loss to the State and the interest of the public will be highly prejudiced. ( 8 ) IN view of the submissions made by the learned counsel for the parties and in order to effectually adjudicate the inter se dispute, we thought it just and proper to scrutinise the original Government file where Tender Papers were processed. Accordingly, in pursuance of our direction, the said file was produced before us and we have gone through the same. The Apex Court in the case of Raunaq International Ltd. v. I. V. R. Construction Ltd. , AIR 1995 SC 393, reiterating their earlier observations made in the case of Tata Cellular v. Union of India, (1994) 6 SCC 651 observed that 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 the dispute is purely between two rival tenderers, the Court must be very careful and unless the Court is satisfied that the transaction is entered into mala fide, should not intervene under Article 226 of the Constitution. 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 saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other. The Apex Court has also observed that the right to choose between one tenderer and the other, cannot be considered as an arbitrary power of the State. Of course, if the power is exercised for any collateral purpose, the same should be struck down. Judicial quest in administrative matters is to find the right balance between the administrative discretion to decide matters and the need to remedy any unfairness. The Supreme Court in the case of Raunaq International supra held as follows at Page 399; of AIR :" (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. (5) The Government must Page 4 of 6 have freedom of contract. In other words, a fair play in the joints is a necessary concommitant for an administrative body functioning in an administrative or quasi-administrative sphere. However, the decision can be tested by the application of the "wednesbury principle" of reasonableness and the decision should be free from arbitrariness, not affected by bias or actuated by mala fide. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. " ( 9 ) NOW we proceed to scrutinise the Govt. Files keeping in view the aforesaid dictum laid down by the Supreme Court in mind. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. " ( 9 ) NOW we proceed to scrutinise the Govt. Files keeping in view the aforesaid dictum laid down by the Supreme Court in mind. Before entering into the arena of controversy, we feel it just and proper to note that pending acceptance of tenders, the three i. e. L-1,l-2 and L-3, tenderers have unanimously agreed to execute the work at the lowest price quoted by L-1 and had submitted the said undertaking before the authorities. In that view of the clear position, the ambiguity with regard to workability of the project at the price quoted by L-2 and L-3 respectively becomes redundant. The letter issued by the Chief Engineer, Minor Irrigation, Orissa, Bhubaneswar on 9-2-2000, (at page 15/c of the file) is the first communication. It reveals that L-1, had not submitted the list of machineries and work experience certificate and had also quoted abnormally low tender amount. So far as L-2 is concerned, it is stated that he has not furnished the list of work in hand and his rate in respect of some of the items are very low. There is no allegation that he has not submitted the list of the machineries. By the said letter, the Chief Engineer, recommended the case of the third lowest tenderer, L-3. The minutes of discussions of the Tender Committee meeting held on 25-8-2000 is available at page 53/c of the file. Perusal of the same also reveals that the second lowest tenderer. L-2, has not only filed a representation to the Secretary, but has also clearly mentioned that his men and machinery are lying idle due to want of work in his hand. After re-examining the materials available, and considering all the aspects, the Tender Committee decided that the Chief Engineer will obtain the list of machineries available with the lowest bidder along with the certificate of performance of any Court work executed by him. The minutes of discussion of the Tender Committee meeting held on 21-1-2000 is available in the file at page 117/c. In the said meeting, it was observed by the Committee that L-2 has quoted abnormally low rates in respect of certain items and has not furnished the analysis of items, to his quoted rates and the Committee recommended the case of L-3 once again. On the basis of a representation filed by L-2 stating that his licence has been renewed in the meanwhile, the Tender Committee considered the matter once again in its meeting held on 7-2-2001 (the minutes of which are available at page 160/c of file ). It reveals that the Tender Committee disposed of the representation of L-2 and observed as follows :"the Tender Committee discussed the representation of the 2nd lowest bidder Sri D. K. Singh. The Committee observed that since the licence of bidder is not valid at the time of consideration of the tenders his tender cannot be considered and accordingly the committee rejected the representation of the bidder Sri D. K. Singh and reiterated its earlier recommendation to award the work in favour of 3rd lowest bidder Sri D. N. Balabantaray. "it appears that L-2 thereafter moved the Government and a direction was issued to scrutinise the matter once again. The last Tender Committee meeting was held on 1-6-2001, the minutes of the said meeting are available in the file at page 219/c. After vivid discussion of the facts and circumstances, and the representations filed by the contractors, and after being satisfied that licence of L-2 tenderer has been renewed in the meanwhile, the Committee decided to give him the first offer to execute the work at the price quoted by the first lowest tenderer. The difference between the first lowest and second lowest tenderers is only Rs. 1,41,276. 53. The relevant portion of the proceedings of the Tender Committee meeting dated 1-6-2001 reveals as follows :"in the original offered amount Sri D. K. Singh being the second lowest bidder and Sri Balabantaray being the third lowest bidder, opportunity should be first extended to Sri D. K. Singh. The Law Member observed that as in the original DTCN the completion period was 18 months with price escalation clause. It will not be proper to reduce the completion period or to delete the price escalation clause. "the Committee resolved that if Sri D. K. Singh agrees to execute the work at the first lowest offer of Rs. 1,00,59,446. 67, the work may be awarded in his favour subject to furnishing of additional performance security of Rs. 9,14,088/- etc. It will not be proper to reduce the completion period or to delete the price escalation clause. "the Committee resolved that if Sri D. K. Singh agrees to execute the work at the first lowest offer of Rs. 1,00,59,446. 67, the work may be awarded in his favour subject to furnishing of additional performance security of Rs. 9,14,088/- etc. It is stated that if L-2 does not agree to execute the work at the first lowest offer and does not furnish additional performance security, the work may be awarded in favour of L-3. We are constrained to note that the observation made by the Law Member not to delete the price escalation clause or to reduce the completion period specially when the tenderers did not insist for the same is rather surprising and is neither just nor proper. ( 10 ) SCRUTINY of the entire facts as well as other relevant documents, leaves no ambiguity in our mind that the grounds on which the tender submitted by L-2 was initially not recommended are : (A) He has quoted abnormally low rates. (b) has not submitted analysis in respect of his rate quoted, and (c) in spite of the intimation, failed to supply the analysis of rates quoted and he is non-responsive. The aforesaid reasoning for non-recommendation as stated earlier, loses its significance, specially in view of the fact that all the three tenderers have agreed to execute the work at the price quoted by the lowest bidder. The minutes of discussion of the subsequent Tender Committee meeting reveals that the Committee felt that L-2 did not possess valid licence on the date of consideration of the tender as it was not renewed. This fact is also not factually correct. In fact, the licence was valid on the date of submission of tender and lapsed later, but in the meantime, the same has been renewed. Thus, his case cannot be thrown out of consideration also on the said ground. If the aforesaid impediments are removed, then L-2 becomes eligible for consideration along with L-1 and L-3. So far as L-1 is concerned, the discussions made in all the Tender Committee meetings clearly reveal that he lacks experience, manpower and machineries. Thus, his case goes out of the arena of consideration. If the aforesaid impediments are removed, then L-2 becomes eligible for consideration along with L-1 and L-3. So far as L-1 is concerned, the discussions made in all the Tender Committee meetings clearly reveal that he lacks experience, manpower and machineries. Thus, his case goes out of the arena of consideration. Section 30 of the Orissa Public Works Department Code (Vol-II) reads as follows :"if an office inviting tender considers it necessary in the interest of the Government, to negotiate with a tenderer with a view to reduce rates or to withdraw special conditions imposed on the tenderer, negotiations may be conducted by him or by an officer authorised by him in writing, first with the lowest tenderer and if he refuses to negotiate, then the next lowest tenderer may be called for and so on. "the Committee after taking a decision to give the offer to the eligible tenderer at the price quoted by the lowest tenderer, has rightly given such offer first to L-2. In our view, and in consonance with the rules, the offer to execute the work at a lowest price has to be first tendered to the tenderer who has offered lowest rates amongst the eligible tenderers and only if he refuses, such offer should be extended to the next lowest tenderer. In view of the clear position of law, we feel that the authorities have not acted illegally and the action does not suffer from the vice of arbitrariness or malice. In the case of New Horizons Limited v. Union of India, (1995) 1 SCC 478 : (1995 AIR SCW 275) the Apex Court emphasised the need to allow for certain flexibility in administrative decision-making process observing that the decision can be challenged only on the Wednesbury principle of unreasonableness i. e. unless the decision is so unreasonable that no sensible person would have arrived at such a decision. It is well settled that it a reasonable procedure has been followed, the decision should not be interfered on the ground of unreasonableness and should not be upset. ( 11 ) IN the present case, so far as L-1, i. e. the petitioner in OJC No. 12738 of 2001 is concerned, he was found ineligible as he does not fulfil the requisite criteria and we have no hesitation to dismiss the said writ application. ( 11 ) IN the present case, so far as L-1, i. e. the petitioner in OJC No. 12738 of 2001 is concerned, he was found ineligible as he does not fulfil the requisite criteria and we have no hesitation to dismiss the said writ application. So far as OJC No. 9193 of 2001 is concerned, after going through the records, Govt. files and after hearing learned counsel for the parties, we are satisfied that the decision taken by the Government on the basis of the recommendation made by the Tender Committee, which is an expert body, did not suffer from the vice of arbitrariness or malice and there is no reason to interfere with the same in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. Accordingly, this writ application is also dismissed. No costs. ( 12 ) P. K. BALASUBRAMANYAN, C. J. :- I agree. Order accordingly.