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Gauhati High Court · body

2006 DIGILAW 138 (GAU)

Ameya Developers Pvt. Ltd. v. State of Assam

2006-02-07

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. Claiming illegal and arbitrary exercise of power by the Respondents towards awarding the contract in question in favour of the Respondent No. 4 to the deprivation of the Petitioner, this writ petition has been filed making a grievance against the same. Shortly stated, the facts leading to the filing of the writ petition are as follows: 2. The Petitioner which is a private company limited by shares and incorporated under the provisions of the Companies Act, 1956 and whose registered office is situated in the State of Maharashtra, submitted its bids in response to the tender notification dated 30.5.2005 issued by the Respondent No. 3 inviting bids for the Standard Bidding Document for "Construction of Fly Over at Six Mile Junction of G.S. Road and Rupkonwar Jyoti Prasad Agarwalla Road, under City Roads Division II", at the estimated cost of Rs. 3914.43 lakhs. The Respondent No. 4, a construction company registered under the provisions of the Companies Act, 1956, is the other tenderer to respond to the tender notice by submitting its bids. Be it stated here that as per the instruction to bidders, bids were to be submitted in two packets containing technical bid and price bid on or before 18.6.2005. Both the parties submitted their tenders. 3. Upon evaluation of the technical bids submitted by both the parties, they were asked to attend the office of the Respondent No. 3 i.e. the Chief Engineer, PWD (Roads) on 27.6.2005 during the opening of the envelopes containing the price bids of the tenderers. Upon opening of the envelops containing the price bids, it was found that between the two parties, the Petitioner's bid was the lowest (L-1) with the price bid of Rs. 39,14,43,000/-. The price bid offered by the Respondent No. 4 was Rs. 50,00,00,000/- and thus naturally was the second lowest (L-2). 4. In view of the above position after opening of the technical and price bids, it was the legitimate expectation of the Petitioner that its bid being the lowest evaluated responsive bid and lower by over 10 crores than the bid of Rs. 50 crores offered by the Respondent No. 4, the contract would be awarded to it. 4. In view of the above position after opening of the technical and price bids, it was the legitimate expectation of the Petitioner that its bid being the lowest evaluated responsive bid and lower by over 10 crores than the bid of Rs. 50 crores offered by the Respondent No. 4, the contract would be awarded to it. According to the Petitioner, since it did not hear anything from the Respondents they made time to time queries and on each occasion the Respondents informed the Petitioner that its bid being the lowest evaluated responsive bid, necessary order awarding the contract to it would follow. However, as against such expectation and assurance, the Petitioner as per the averments made in paragraph 9 of the writ petition, could come to know that the Respondent No. 3 had already issued letter of acceptance purportedly dated 15.9.2005 accepting the bid of the Respondent No. 4. It has also been averred that the Respondent No. 3 secretly entered into post bid price negotiation with the Respondent No. 4 ignoring the lowest bid of the Petitioner. Pursuant to such negotiation, the Respondent No. 4 agreed to do the job at Rs. 40,70,22,431/-, though close but still higher than the bid of Rs. 39,14,43,000/- offered by the Petitioner. The Petitioner has contended that the entire action of the Respondents in awarding the contract to the Respondent No. 4 upon negotiation, without giving any opportunity to the Petitioner and in not making any communication assigning reasons for non-acceptance of its bid is highly illegal and arbitrary and it smacks malafide exercise of power. 5. The Petitioner has contended that it has experience of doing similar works and are financially competent for undertaking the construction work in question. As required, the Petitioner had furnished a list of similar nature of construction works undertaken and executed by it during the last five years along with completion certificates issued by the authorities. The Petitioner has also contended that it received number of awards for successful execution of similar construction works including those for innovative structures, quality in construction, excellence of bridge engineering, most outstanding structure etc. The Petitioner has also highlighted as to how it could successfully and within the permitted time could construct the Fly over at Ulubari, GS Road, Guwahati allotted by the Respondents for which necessary completion certificate was issued to the Petitioner. 6. The Petitioner has also highlighted as to how it could successfully and within the permitted time could construct the Fly over at Ulubari, GS Road, Guwahati allotted by the Respondents for which necessary completion certificate was issued to the Petitioner. 6. The relevant clause of the instruction to bidders (ITB) under the head Qualification of the Bidder, entering around which the present controversy has arisen is quoted below: 4.5 (A) To qualify for award of the contract, each bidder in its name should have in last 5 years, i.e. 1999-00, 2000-01, 2001-02, 2002-03, 2003-04. (a) Achieved a minimum annual financial turnover (in all classes of civil engineering construction works only) of 100% of the estimated cost of the package (cost of completed works of previous years shall be given waitage of 10% per year based on rupee value to bring them to present price level in any one year). (b) Satisfactorily completed (not less than 100% of contract value), as a prime contractor atleast one similar work of value not less than amount indicated in appendix (not less than 67% of estimated value of contract). (c) Executed in any one year, the minimum quantities of the major items of work as indicated in appendix (usually not less than 80% of the estimated quantity). 7. In the writ petition, the Petitioner has also placed reliance on Clause 31.1 and Clause 32.1 of the ITB which are reproduced below: 31.1 Subject to Clause 32, the employer will award the contract to the bidder whose bid has been determined. (i) To be substantially responsive to the Bidding documents and who has offered the lowest evaluated Bid price; and (ii) To be within the available bid capacity adjusted to account for his bid price which is evaluated the lowest in any of the packages opened earlier than the one under consideration. In no case, the contract shall be awarded to any bidder whose available bid capacity is less then the evaluated bid price, even if the said bid is lowest evaluated bid. The contract will in such cases be awarded to the next lowest bidders at his evaluated bid price. In no case, the contract shall be awarded to any bidder whose available bid capacity is less then the evaluated bid price, even if the said bid is lowest evaluated bid. The contract will in such cases be awarded to the next lowest bidders at his evaluated bid price. 32.1 Notwithstanding Clause 31, the Employer reserves the right to accept or reject any Bid and to cancel the bidding process and reject all Bids, at any time prior to the award of contract, without thereby incurring any liability to the affected Bidder or Bidders or any obligation to inform the affected Bidder or Bidders of the grounds for the Employer's action. 8. Placing reliance on the aforesaid two clauses of the ITB, the Petitioner has contended that the Respondents are bound to award the contract to the bidder whose bid has been determined to be substantially responsive to the bidding document and who has offered the lowest evaluated bid price. Thus to be entitled to get the award, the bidder has to satisfy two pre-conditions, namely, the bid has to be determined to be substantially responsive and secondly the price offered must be the lowest evaluated bid price. The Petitioner further contends that though the Respondents under Clause 32 of the ITB have reserved the right to accept or reject and bid, yet the same cannot be done arbitrarily or unreasonably so as to show undue favour and resort to pick and choose amongst the bidders for extraneous considerations. According to the Petitioner, the decision to award the contract in question to Respondent No. 4 was taken by following such arbitrary procedure upon extraneous consideration, without considering the fact that the Petitioner's bid was determined to be substantially responsive and the price offered by the Petitioner was the lowest evaluated and also keeping in mind the public interest involved. 9. The Respondents, both official and private, have filed their respective counter affidavits. In the counter affidavit filed by the official Respondents, certain revelations have been made not to be found in the writ petition, which have been re-capitulated in the preliminary rejoinder affidavit and the rejoinder affidavit filed by the Petitioner on 9.12.2005 and 22.12.2005 respectively. Be it stated here that the official Respondents filed their affidavit on 9.12.2005 followed by an additional affidavit filed by the Respondent No. 3 on 22.12.2005. Be it stated here that the official Respondents filed their affidavit on 9.12.2005 followed by an additional affidavit filed by the Respondent No. 3 on 22.12.2005. The Respondent No. 4, in its affidavit has more or less reiterated the stand of the official Respondents in their counter affidavit. 10. On perusal of the counter affidavit filed by the official Respondents, it appears that in order to effectively scrutinize the tenders in respect of PWD contracts, the Government of Assam in PWD vide order dated 12.10.2004 (Annexure-A) constituted a committee comprising of Deputy Secretary, PWD (NH) as Chairman and Under Secretary, PWD (NH), (Planning, Common and Building) as Member, to examine the C/S, Tender papers, etc. pertaining to various schemes under PWD before placing the same before the Tender Committee. By the same order dated 12.10.2004, the Scrutiny Committee was entrusted with the responsibility of furnishing C/S-Ys observations to facilitate the Tender Committee for recommending the works. 11. The Respondents in their counter affidavit apart from highlighting the above quoted provisions of the ITB i.e. 4.5 (A) have also referred to some other clauses, which are as follows: 8.3 The bidder is expected to examine carefully all instructions, conditions of contract, contract date, forms, terms, technical specifications, bill of quantities, forms, annexes and drawings in the bid documents. Failure to comply with the requirements of bid documents shall be at the bidder's own risk. Pursuant to Clause 26 hereof, bids which are not substantially responsive to the requirements of the bid documents shall be rejected. 26. Examination of bids and determination of Responsiveness. 26.1. During the detailed evaluation of "Technical Bids", the employer will determine whether each Bid (a) meets the eligibility criteria defined in Clause 3 and 4, (b) has been properly signed, (c) is accompanied by the required securities and (d) substantially responsive to the requirements of the Bidding documents. During the detailed evaluation of the "Financial Bid", the responsiveness of the Bids will be further determined with respect to the remaining Bid conditions, i.e. priced Bill of Quantities, technical specifications and drawings. 31. Award Criteria 31.1 Subject to Clause 32, the employer will award the contract to the bidder whose Bid has been determined. (i) To be substantially responsive to the Bidding documents and who has offered the lowest evaluated Bid price. 12. According to the Respondents, from the aforementioned clauses, what necessarily emerges are the following. 31. Award Criteria 31.1 Subject to Clause 32, the employer will award the contract to the bidder whose Bid has been determined. (i) To be substantially responsive to the Bidding documents and who has offered the lowest evaluated Bid price. 12. According to the Respondents, from the aforementioned clauses, what necessarily emerges are the following. (i) The employer, i.e. the Chief Engineer can award the contract only to such bidder whose bid has been determined to be substantially responsive. (ii) For a bid to be determined as substantially responsive, the bidder has to meet the eligibility criteria defined in Clause 3 an 4 of the Instructions to Bidders in respect of a bidder's Technical Bid, failing which the same shall be rejected in terms of Clause 8.3 (iii) In order to meet the eligibility criteria as laid down in Clause 4.5 of the ITB a bidder must: (a) Have satisfactorily completed atleast one similar work. (b) The entire 100% of such similar work must have been already completed. (c) Such similar work has to be executed as a prime contractor. (d) The value of such similar work has to be 67% of the present work in question, i.e. Sixth Mile Flyover (67% of Rs. 3914.43 Lakhs=Rs. 2622.6681 Lakhs) 13. The Respondents in their counter affidavit have admitted that pursuant to the NIT in question, only two tenderers, namely, the Petitioner and the Respondent No. 4 submitted their bids/tender. Referring to Clause 4.5(A)(b), the Respondents have contended that as per the own admission of the Petitioner they did not meet the eligibility criteria in terms of the said clause inasmuch as in their tender, they had shown satisfactory completion of works of similar nature to the tune of Rs. 2200.50 lakhs as against the requirement of Rs. 2622.6681 lakhs as mentioned in para (iii) (d) above. According to the Respondents, the office of the Chief Engineer (Respondent No. 3) made a bonafide and inadvertent mistake in misconstruing the eligibility condition laid down in Clause 4.5(A)(b) of the ITB which resulted in opening of the financial bid of the Petitioner. 14. The Respondents have further contended that after preparing the comparative statement, the office of the Chief Engineer forwarded the same alongwith the tender papers in original to the Tender Committee. 14. The Respondents have further contended that after preparing the comparative statement, the office of the Chief Engineer forwarded the same alongwith the tender papers in original to the Tender Committee. Referring to the aforesaid Scrutiny Committee constituted by order dated 12.10.2004, the Respondents have contended that the said committee detected the mistake committed by the office of the Chief Engineer in concluding that the Petitioner was technically qualified. The Scrutiny Committee recorded its finding relating to the mistake so committed and thereafter placed the entire records before the Tender Committee. 15. The Tender Committee in its meeting held on 05.07.2005 noticed and recorded the aforesaid finding of the Scrutiny Committee and rejected the bid of the Petitioner since it did not meet the eligibility criteria laid down in Clause 4.5(A)(b). The Respondents have further stated that the Petitioner being technically disqualified, the only tenderer, which remained in the fray was the Respondent No. 4. The Tender Committees was of the opinion that the rate quoted by the Respondent No. 4 was slightly on the higher side and therefore after taking into consideration various relevant aspects of the matter, it decided to offer the contract to the Respondent No. 4 at a value 3.98% above the estimated cost, which works out to Rs. 40,70,22,431/-. Accordingly, the Government of Assam in the PWD vide its letter dated 14.9.2005, conveyed the recommendation of the Tender Committee to the Respondent No. 3, who in turn issued the letter of intent to the Respondent No. 4 on 15.9.2005. The Respondent No. 4 having accepted the offer so made, the contract agreement was executed on 3.10.2005 and on the same date the work order was also issued. The Respondents have further stated that the site has already been handed over to the Respondent No. 4, who in turn has taken steps for execution of the contract. Be it stated here that the works involved in the contract are required to be completed within 18 months from the date of issuances of the final work order. 16. In the preliminary rejoinder affidavit filed by the Petitioner on 9.12.2005, it has been contended that considering the fact that in the year 1999, the Petitioner had executed works worth Rs. 16. In the preliminary rejoinder affidavit filed by the Petitioner on 9.12.2005, it has been contended that considering the fact that in the year 1999, the Petitioner had executed works worth Rs. 2250.00 lakhs, they are entitled to the weightage at the rate of 10% per year from the year 1999 to the year 2005 and thus the weightage of 10% x 5 years i.e. 50% weightage is needed to be given to the value of the works done by the writ petition in the year 1999. Making the calculation on that basis, it is the case of the Petitioner that 50% of Rs. 2250 lacs would be Rs. 1125 lacs and if the weightage of Rs. 1125 lacs is added in terms of Clause 4.5.(A)(a), the value of the previous work done by the Petitioner should be computed as 2250 +1125 lacs= Rs. 3375 lacs. 17. On the basis of the aforesaid calculation made by the Petitioner as reflected in their preliminary rejoinder affidavit, the Petitioner has contended that the alleged reason for not considering the writ Petitioner as eligible considering the value of its previous work at Rs. 2250 lacs, without giving the weightage to the said value, as required by ITB, considering that the work of the said value was executed in the year 1999, is totally irrational, unreasonable and unfair. The Petitioner has further contended that denial of contract to the Petitioner is also vitiated by the fact that the Tender Evaluation Committee obviously found its tender to be responsive and only because of that, in terms of Clause 23.6, the price bid of the Petitioner was opened and the same was found to be the lowest and by far lower than the price bid of Respondent No. 4, which is over 10 crores. As regards the contention of the Respondents that there was mistake, the Petitioner has contended that the same is not acceptable as a truthful description of the decision making process inasmuch as the ITB clearly stipulates that only when tenders are held to be technically responsive, the price bid would be opened. 18. Amidst the course of hearing of the matter, the Petitioner as well as the Respondent No. 3 filed the aforementioned rejoinder affidavit and additional affidavit respectively. 18. Amidst the course of hearing of the matter, the Petitioner as well as the Respondent No. 3 filed the aforementioned rejoinder affidavit and additional affidavit respectively. The Petitioner in the rejoinder while reiterating the stand in the preliminary rejoinder has contended that the entire action of the Respondents is actuated with malice inasmuch as the role assigned to the Scrutiny Committee is to assist the Tender Evaluation Committee under the ITB i.e. pre-bid evaluation examination of the tender papers and comparative statement etc. and not post-bid evaluation. Referring to Clause 23.4(iv) of the ITB, the Petitioner has contended that it is the Bid Evaluation Committee who is to finalize the list of responsive bids and whose financial bids are eligible for consideration. 19. Referring to the records produced by the learned Standing Counsel, PWD, the Petitioner has further asserted that the technical bid of the Petitioner was determined to be responsive by the Evaluation Committee and thereafter the bids of both the parties were opened and the bid of the Petitioner was determined to be the lowest substantially responsive bid, which resulted in recommending the Petitioner for awarding the contract. The Petitioner has found fault with the Scrutiny Committee in making remark against the Petitioner in respect of value of similar work as "thus failed against Sl. 2 in value of similar works." Sl. 2 is the column relating to value of similar work in terms of Clause 4.5(A)(b). According to the Petitioner, the Scrutiny Committee did so without any authority of law in making such remark after preparation of the comparative statement by the Bid Evaluation Committee and making the recommendation in favour of the Petitioner and it exceeded in its jurisdiction by way of sitting over the decision given by the Bid Evaluation Committee. Referring to Clause 33 of the ITB, the Petitioner has also contended that it was incumbent on the part of the Respondents to promptly inform the Petitioner about the award of the contract to the Petitioner and everything was done in a hush-hush manner. 20. As regards the interpretation of Clause 4.5(A)(b) of the ITB on the basis of which, the tender of the Petitioner has been rejected, the Petitioner has raised the following contentions: The 'Bench Mark for evaluation of past single contract has been determined to be Rs. 2622.6681 lakhs by the PWD as per the counter filed. 20. As regards the interpretation of Clause 4.5(A)(b) of the ITB on the basis of which, the tender of the Petitioner has been rejected, the Petitioner has raised the following contentions: The 'Bench Mark for evaluation of past single contract has been determined to be Rs. 2622.6681 lakhs by the PWD as per the counter filed. This single work can be in any single year in the last five years (1999-2004). Therefore if value of work done in 1999, worth Rs. 2200.50 lakhs of the Petitioner is considered to be less then, with work worth Rs. 26 crores done in the year 2004, it would lead to treating of unequals as equals and there would be no level playing field. Such an interpretation would be unreasonable and not fair and weightage has to be given in terms of the ITB and its Appendix. In the subject contract, the condition of eligibility under Clause 4.5A is that the bidder should have achieved a minimum annual turnover of 100% of the estimated cost and out of the said works done in any of the last 5 years, the bidder should have satisfactory completed at least one work of value not less then 67% of the estimated value. In computing the value of work previously done by the Petitioner, the Respondents have not computed the value of the said previous work done by the writ Petitioner in the year 1999, at the rate mentioned in the ITB and the Appendix per year, to bring the said value to the present price level as has been stipulated in Clause 4.5(A)(a) of the ITB and or the Appendix to the Clause 4.5(A)(b) of ITB. Considering that in the year 1999, the writ Petitioner had executed work worth Rs. 2250 lacs, the Petitioner is entitled to weightage at the rate of 10% per year from the year 1999 to the year 2004 under Clause 4.5(A)(a) or to multiply the said value of work by 1.55 (for 5 years) in terms of the appendix to Clause 4.5 A. In adopting either mode of computation the Bench Mark of Rs. 2250 lacs, the Petitioner is entitled to weightage at the rate of 10% per year from the year 1999 to the year 2004 under Clause 4.5(A)(a) or to multiply the said value of work by 1.55 (for 5 years) in terms of the appendix to Clause 4.5 A. In adopting either mode of computation the Bench Mark of Rs. 2622.6681 lakhs is easily reached by the Petitioner and that is why the evaluation committee as well as the employer who is the Chief Engineer PWD (Road) has found the Petitioner's bid to be responsive and there is no justification to disregard the said view at the instance of the tender scrutiny committee or in terms of the ITB. That with regard to the statement made in sub-paragraph D of paragraph 3 of the affidavit-in-opposition, your deponent begs to state that the Respondents contention in the instant paragraph under reply that in order to meet the eligibility criteria, at least one similar work of stipulated value ought to have been completed by an intending tenderer is misplaced. The said estimated value has been mentioned as Rs. 2622.6681 lacs. Further the Respondent authorities have purportedly considered the writ Petitioner to be ineligible in terms of the above clause as the Petitioner is said to have completed works only to the tune of Rs. 2200.50 lacs in the year 1999. In computing the value of work done in the past (1999) by the Petitioner, the Respondents have not computed the value of the said previous work done by the writ Petitioner in the year 1999, in the manner and the rate per year as mentioned in the ITB and the Appendix, to bring the said value to the present price level as has been stipulated in Clause 4.5(A)(a) of the ITB and or the Appendix to the Clause 4.5(A)(b) of ITB. Considering that in the year 1999, the writ Petitioner had executed work worth Rs. 2250 lacs, the Petitioner is entitled to weightage at the rate of 10% per year from the year 1999 to the year 2004 under Clause 4.5A(a). In adopting either mode of computation the Bench Mark of Rs. Considering that in the year 1999, the writ Petitioner had executed work worth Rs. 2250 lacs, the Petitioner is entitled to weightage at the rate of 10% per year from the year 1999 to the year 2004 under Clause 4.5A(a). In adopting either mode of computation the Bench Mark of Rs. 2622.6681 lakhs is easily reached by the Petitioner and that is why the evaluation committee as well as the employer who is the chief engineer PWD (Road) has found the Petitioner's bid to be responsive and there is no justification to disregard the said opinion at the instance of the tender scrutiny committee or in terms of the ITB. Thus the alleged reason for not considering the writ Petitioner as eligible considering, the value of its previous work at Rs. 2250 lacs, without giving the weightage to the said value, as required by ITB, considering that the work of the said value was executed in the year 1999, is totally irrational, unreasonable and unfair and for this reason alone, the decision-making process is vitiated in law and the same is liable to be interfered by this Hon'ble Court. 21. In the additional affidavit filed by the Respondent No. 3, while reiterating the stand of bonafide mistake in opening the financial bid of the Petitioner, it has been contended that the report favouring the case of the Petitioner alongwith the comparative statement was forwarded upon formation of such bonafide mistake, which however, came to light and the Tender Committee with the Respondent No. 2 as the Chairman alongwith other members including the Chief Engineer, (who incidentally is the deponent), examined the relevant materials and deliberated upon the issue. After due deliberation and examination of the tender submitted by the Petitioner it was found that the Petitioner did not fulfill the requirement of Clause 4.5(A)(b) of the ITB and accordingly his tender had to be rejected being not technically qualified. The Chief Engineer in the affidavit has indicated as to how he was personally present in the tender Committee meeting held on 5.7.2005 and upon a close perusal of Clause 4.5(A)(b) of the ITB realized his mistake. The Chief Engineer in the affidavit has indicated as to how he was personally present in the tender Committee meeting held on 5.7.2005 and upon a close perusal of Clause 4.5(A)(b) of the ITB realized his mistake. As regards the plea of the Petitioner that the figure of 2200.50 lacs as value of satisfactory completion of work was to be multiplied by the figure of 1.5 in terms of Clause 14 of the appendix, it has been contended that the escalation factors and the figures given therein, are strictly for the purpose of making the calculations for evaluating the available bid capacity as envisaged in Clause 4.7 of the ITB and is in no way connected to Clause 4.5(A)(b). It has also been contended that the mistake occurred in the office of the Respondent No. 3 was not on account of Clause 14 of the appendix to the ITB but was on account of the weightage envisaged in Clause 4.5(A)(a) of the ITB. 22. On the basis of the aforesaid respective pleadings, the real issue involved is as to whether the Petitioner is entitled to any weightage as envisaged under Clause 4.5(A)(a), in respect of Clause 4.5(A)(b) as well. Mr. H. Roy, learned Sr. Counsel, assisted by Mr. K. Goswami, learned Counsel for the Petitioner referring to the aforesaid respective pleadings and the various clauses of the ITB submitted that the entire action on the part of the Respondents is founded on malafide exercise of power. On the other hand, Mr. N. Dutta, learned Sr. Counsel assisted by Mr. A. Sarma, learned Counsel appearing on behalf of the Respondent No. 4 confined his argument only to the question as to whether under Clause 4.5(A)(b), the Petitioner was eligible or not. According to him, once it is found that the Petitioner was not eligible, all other procedural irregularities, even if any, would naturally fell through. Mr. I. Choudhuiy, learned Standing Counsel, PWD, also made submissions in tune with the submissions made by the learned Counsel for the Respondent No. 4. 23. Mr. H. Roy, learned Sr. Counsel for the Petitioner placed reliance on the following decisions: 1. (1979) 3 SCC 489 (Ramana Dayaram Shetty v. International Airport Authority) 2. (1994) 6 SCC 651 (Tata Cellular v. Union of India) 3. (1999)1 SCC 492 (Raunaq International Ltd. v. IVR Construction Ltd.) 4. 23. Mr. H. Roy, learned Sr. Counsel for the Petitioner placed reliance on the following decisions: 1. (1979) 3 SCC 489 (Ramana Dayaram Shetty v. International Airport Authority) 2. (1994) 6 SCC 651 (Tata Cellular v. Union of India) 3. (1999)1 SCC 492 (Raunaq International Ltd. v. IVR Construction Ltd.) 4. (2001) 2 SCC 451 (WB State Electricity Board v. Patel Engineering Co. Ltd.) 5. (1997)10 SCC 53: 1997(2) GLT (SC) 1 : (Dutta Associates v. Indo Merchantile Pvt. Ltd.) 6. (1990) 3 SCC 752 (Mahabir Auto Stores v. Indian Oil Corporation) 7. (1997) 1 SCC 738 (Asia Foundation v. Trafalgar House Construction) 8. (1999) 7 SCC 89 [Style (Dress Land) v. Union Territory, Chandigarh] 9. (1993) 1 SCC 71 (Food Corporation of India v. Kamdhenu Cattle Feed Industries) 10. 1969 (1) AllER 208 (Anisminic Ltd. v. Foreign Compensation) 11. (1998) 9 SCC 606 (State of Punjab v. Preetom Singh). 24. Mr. N. Dutta, learned Sr. Counsel appearing for the Respondent No. 4 has also placed reliance on two decisions of the Apex Court as reported in (1999)1 SCC 492 (Raunaq International Ltd. v. IVR Construction Ltd.) and (2000) 2 SCC 617 (Air India Ltd. v. Cochin International Airport Ltd.). He also placed reliance on the unreported judgment of this Court dated 8.2.2005 passed in W.P. (C) No. 9205/2004 (Biswanath Garodia v. State of Assam and Ors.). Mr. I Choudhury, learned Standing Counsel, also placed reliance on the said two decisions of the Apex Court. He also placed reliance on the decision in (2003) 2 SCC 673 (Onkar Lal Bajaj v. Union of India). 25. Amidst the aforesaid arguments and counter arguments with the help of the case laws, the real issue is relating to the interpretation of Clause 4.5(A)(b). While, the learned Counsel for the Petitioner has put emphasis mainly only procedural part towards awarding the contract to the Respondent No. 4, of course, coupled with the argument that the weightage envisaged in Clause 4.5(A)(a) is also available in Clause 4.5(A)(b), the learned Counsels for the Respondents have emphasized on the correct interpretation of the aforesaid clause irrespective of any procedural irregularity, even if found to be any. 26. The relevant clause centering around which the whole controversy has arisen has been quoted above. 26. The relevant clause centering around which the whole controversy has arisen has been quoted above. In order to meet the eligibility criteria as laid down in Clause 4.5 of the ITB, a bidder must (i) have satisfactorily completed atleast one similar works; (ii) the entire 100% of such similar works must have been already completed; (iii) such similar works has to be executed as a prime contractor and (iv) the value of such similar work has to be 67% of the present work in question. As has been shown by the official Respondents in their counter affidavit, the value of 67% of the present work comes to Rs. 2622.6681 lacs, the estimated value of the present contract being 3914.43 lacs. There is no dispute that the Petitioner stated in his bid that it has satisfactorily completed works of similar nature to the tune of Rs. 2200.50 lacs. Thus, unless the weightage as envisaged in Clause 4.5(A)(a) is extended to the Petitioner in respect of the aforesaid amount of Rs. 2200.50 lacs relating to Clause 4.5(A)(b) also, on the face of it, the Petitioner does not fulfill the eligibility criteria. 27. The question for determination is as to whether the weightage extended in Clause 4.5(A)(a) can also be read into Clause 4.5(A)(b) in absence of any express provision in the ITB. While Clause 4.5(A)(a) speaks of achieving a minimum annual financial turnover of 100% of the estimated cost of the package with weightage of 10% per year, based on rupee value to bring to present price level in any one year Clause 4.5(A)(b) speaks of satisfactory completion, as a prime contractor, atleast one similar work of value not less than 67% of estimated value of contract. Both the clauses are independent, separate and distinct to each other. On plain reading of the clauses, there is no scope for imbibing Clause 4.5(A)(a) into 4.5(A)(b). The question is not what may be supposed and has been intended but what has been said. It will be pertinent to mention here that there is no challenge to Clause 4.5 of the ITB and naturally so when the Petitioner with its eyes wide open submitted tender accepting the ITB. 28. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is the determinative factor of legislative intent. 28. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. In Dr. Venkatachalam v. Dy. Transport Commr. reported in (1977) 2 SCC 273 , it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. It was further observed that the Courts are not entitled to usurp the legislative function under the disguise of interpretation. 29. Needless to say that while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process [ See Rishabh Agro Industries Ltd. v. PNB Capital Services Ltd. reported in (2000) 5 SCC 515 ]. 30. Although in the instant case, we are not concerned with any interpretation of statute but nonetheless the principles underlying will be applicable while interpreting the clauses of the ITB. The Petitioner may have a genuine grievance for not granting the weightage in respect of satisfactory completion of, as a prime contractor, atleast one similar work of value not less than 67% of estimated value of contract, as has been granted in respect of achieving a minimum annual financial turnover of 100% of the estimated cost of the package and the relevant Clause i.e. 4.5(A)(b) and their contentions that the decision not to give any weightage to the value of the previous work at Rs. 2250 lacs is totally irrational, unreasonable and unfair, which resulted in keeping the Petitioner out of the race unfairly and that the interpretation relating to Clause 4.5(A)(b) would lead to treating of unequal as equal and there would be no level playing field may be a weighty one, but this Court cannot incorporate the same by way of interpreting Clause 4.5(A)(b) in that manner. As observed above, the question is not what may be supposed and has been intended but what has been said. 31. As regards the procedural irregularity in the matter and the contention that the technical bid of the Petitioner having been found substantially responsive, at a later stage i.e. at the time of opening the price bid, a contrary decision could not have been taken, I am of the considered opinion that the same being a matter of procedure, even if there was some procedural irregularity same cannot render any help to the case of the Petitioner in view of the clear and unambiguous meaning of 4.5(A)(b) about which, discussions have been made above. This aspect of the matter also finds support from the decision of this Court in Sri Biswanath Garodia (supra) on which the learned Counsel for the Respondent No. 4 placed reliance. Reference made by the learned Counsel for the Petitioner to the Appendix to the ITB is of no help to the case of the Petitioner when the whole emphasis is on satisfactory completion, as a prime contractor at least one similar work of value not less than 67% of the estimated value of contract, which condition, as per own showing, the Petitioner did not fulfill. 32. In Raunaq International Ltd. (supra), the Apex Court observed that it is always necessary to remember that price may not always be the sole criterion for awarding a contract. At times, a higher price for a much better quality of work can be legitimately paid in order of secure proper performance of the contract and good quality of work, which is as much in public interest as a low price. The Court should not substitute its own decision for the decision of an expert evaluation committee. The Apex Court also highlighted as to how normally before a project is undertaken, a detailed consideration of the need, viability, financing and cost-effectiveness of the proposed project and offers received takes place at various levels in the Government. If breach of law in the execution of the project is apprehended, then it is at this stage when the viability of the project is being considered that the objection before the appropriate authorities including the Court must be raised. The Apex Court emphasized that the court should be moved at the earliest possible opportunity and belated petitions should not be entertained. The Apex Court emphasized that the court should be moved at the earliest possible opportunity and belated petitions should not be entertained. This case has been referred to by the learned Counsel for the Respondents on both counters i.e. the claim of the Petitioner that he being the lowest tenderer ought to have been favoured with the contract is not sustainable, it being technically disqualified and this factor would out weigh the price factor and the court would not substitute its own decision for the decision of an expert evaluation committee and secondly, the contract having already been awarded to the Respondent No. 4 with some progress with the works, the court would be reluctant to interfere with the same. 33. In AIR India Ltd. (supra) also, the Apex Court emphasized as to how award of a contract being essentially a commercial transaction, the State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny, price need not always be the sole criterion for awarding a contract. Though the decision is not amenable to judicial review, the court can examine the decision making process and interfere if it is found vitiated by malafides, unreasonableness and arbitrariness. Even when some defect is found in the decision making process the court must exercise its discriminatory power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on making out of a legal point. The court should always keep the larger public interest in mind and it is only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. Learned Counsel for the Respondents placing reliance on this decision submitted that even if there was some procedural irregularity, but the provisions of the ITB having been substantially complied with, the Petitioner cannot take the benefit of such irregularity by making out a case, if the net result remains the same. It was contended that when the Petitioner did not fulfill the criteria as laid down in Clause 4.5.(A)(b), they are not entitled to raised the plea of procedural irregularity, even if there was any. 34. It was contended that when the Petitioner did not fulfill the criteria as laid down in Clause 4.5.(A)(b), they are not entitled to raised the plea of procedural irregularity, even if there was any. 34. The case of Onkar Lal Bajaj (supra), was pressed into service to bring home the well established proposition of law that if two views are possible and the Government takes one of it, it would not be amenable to judicial review on the ground that the other view, according to the court is a better view. In the instant case, it has already been noticed that as per the plain reading of Clause 4.5(A)(b), the Petitioner as per its own showing having failed to satisfy satisfactory completion of atleast one similar work of value not less than 67% of the estimated value of contract, they were not eligible even to submit tender. If that be so, all other considerations naturally fall through. In Raunaq International Ltd. (supra), the Apex Court noticing that the party which had challenged the award of tender itself did not fulfill the requisite criteria being not possessed the prescribed experienced qualification, held that any judicial relief at the instance of a party, which does not fulfill the requisite criteria seems to be misplaced. 35. The decision on which, Mr. Roy, learned Sr. Counsel for the Petitioner placed reliance are in respect of rules of interpretation, test of objectivity, duty of the court in matter of the judicial review, transparency, fairness and openness in decision making process etc. There is no quarrel with the propositions of law as have been laid down in the cases cited by the learned Counsel for the Petitioner and they are well settled principles of law laying down different parameters and yardsticks in the matter of award of contract. Those decisions on questions of law are binding precedents, but upon ascertainment and determination, by analysing the material facts, the issue involved in the instant case, they are of no help to the case of the Petitioner. For the foregoing reasons and discussions, I do not find any merit in the writ petition and consequently, same is dismissed, leaving the parties to bear their own costs. Petition dismissed