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2006 DIGILAW 846 (GAU)

Builders Association of India v. Union of India

2006-09-07

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Veiphei, J. 1. In this writ petition, the Petitioner-Association is questioning the legality of issuing tender documents in respect of the works for construction of "Provision of Parade and Playing Ground for 2 Coy FC S.R. at Narengi under GE Gauhati Guwahati" by the Respondent No. 4 in favour of the Respondent No. 5. 2. The material facts giving rise to the controversy may be noticed at the very outset. The Petitioner is a registered Association formed for the purpose of protecting the interest and welfare of builders, having its Head Office at New Delhi with its Branch Office at Lankeswar, Guwahati and that the members of this Association are registered contractors, who are duly enlisted with the Military Engineering Service (MES for short) under different classifications. The Respondent No. 4 issued the Notice Inviting Tender (NIT) from enlisted MES, PWD, CPWD and Railway Contractors of the appropriate class for allotting the aforesaid work order. In response to the NIT, as many as seven enlisted contractors, namely, M/s V.V. Construction, M/s G.K. Traders, M/s Nirmal Das and Co., M/s Kakwani Builders, M/s Krishna Construction, M/s Rana Kr. Phukan and M/s Dil Singh Bishwa, who are all members of the Association, applied for and were issued the tender documents. The case of the Petitioner is that as per the Guidelines issued by the Engineer-in-Chief, Army Headquarters, New Delhi, no fresh enlistment could be done anywhere in India including remote and difficult areas and that tenders can be issued to unenlisted contractors only when sufficient applications from eligible enlisted contractors i.e. six such contractors are not received and it is considered essential in the interest of work and also subject to the approval of the next higher Engineer authorities in respect of all contracts. 3. It is further case of the Petitioner that the Respondent No. 4, in utter violation of such policy and guidelines issued by the Department, issued tender documents to the Respondent No. 5, who is neither an enlisted contractor nor fulfilling the criteria of enlistment in appropriate class such as minimum reserves, financial soundness, technical qualification and adequate experience in the relevant categories of works. According to the Petitioner, the Respondent No. 5 has never undertaken any contract work in his name or in his individual capacity but whatever works undertaken by him heretofore has been done by him only as the holder of power of attorney of some other firms, which are also yet to be completed. The Petitioner further points out that the Department for reasons best known to them informed the tenderers by telegram that the date for receipt of the tenders had been postponed and that fresh date would be intimated subsequently. But, the Petitioner further avers, none of the enlisted tenderers, to whom tender papers were issued have received any communication till 17.6.2006 regarding the date of submission of such tenders and that it was only on 18.6.2006 that a telegram was received by a few of them fixing 19.6.2006 (in the bracket 19.8.2006) as the date for filing tender documents, but the post copies have not been received by them till now. It is thus contended that sufficient time is not given to the tenderers as per the guidelines of the Department and that the action of the Respondent No. 4 in issuing the tender forms to the Respondent No. 5, who is not an enlisted contractor, is arbitrary, illegal and contrary to their own guidelines and the same has been done with the malafide intention to deprive the eligible enlisted contractors of their right to be awarded the work in question, and conversely, to help the Respondent No. 5 by fixing the date for submission of tender without giving adequate time to the eligible enlisted contractors. It is also pointed by the petitioner that the work in question does not require expert or specialized contractor warranting the issue of tender to un-listed contractors. The Petitioner further states that it had vide the letter dated 23.5.2006 requested the Respondent No. 2 to intervene in the matter and withdraw the tender papers issued to the Respondent No. 5 and to complete the tender process only with the eligible enlisted tenderers. Having failed to persuade the Respondent-authorities, this is how the writ petition came to be filed. 4. The Respondent-authorities resisted the writ petition by filing their counter affidavit. No counter affidavit is, however, filed on behalf of the Respondent No. 5, but the learned Counsel appearing for him in the course of hearing adopted the stand by the Respondent-authorities. Having failed to persuade the Respondent-authorities, this is how the writ petition came to be filed. 4. The Respondent-authorities resisted the writ petition by filing their counter affidavit. No counter affidavit is, however, filed on behalf of the Respondent No. 5, but the learned Counsel appearing for him in the course of hearing adopted the stand by the Respondent-authorities. In so far as the qualification of the Respondent No. 5 is concerned, the case of the answering Respondents is that the said Respondent himself is a graduate Civil Engineer from Assam Engineering College, is the owner of immovable property of appropriate value supported by valuation report, tools and plants necessary for execution of the work in question, has been considered solvent to the extent of Rs. 50 lakhs by their banker, is enlisted with the Assam State Public Works Department and is presently executing the work for provision of OTM Accommodation for 2 Coy FCSR at Guwahati for Rs. 254.00 lakhs as the holder of the Power of Attorney under his own management, and has now completed 85% of the work. According to the answering Respondents, the private Respondent has good technical and managerial abilities and commitment to his profession and is thus considered capable of executing similar civil engineering projects. A number of documents to support the credential of the private Respondents is annexed to the counter affidavit. As to how the Respondent No. 5, who admittedly did not respond to the first tender was issued the tender form, the answering Respondents explained that when the lowest rate quoted by the eligible enlisted tenderers was found to be abnormal and unreasonable, it was decided to re-issue tender with additional applicants to encourage better competition. According to the answering Respondents, tender was re-issued on 12.5.2006 with the date of receipt of the tender being 12.6.2006, by registered post to all the seven tenderers of the first call and the Respondent No. 5, after duly verifying his credentials and also after obtaining the approval of the next higher Engineering Authority, vide the letter dated 9.5.2006. 5. It is also averred that the Petitioner-Association was only interested in ousting the Respondent No. 5 from the bid as disclosed by their conducts in their meeting with the Respondent No. 4 on 14.6.2006, which took place after postponing the date of tender by one week at the desire of the contractors representing the Petitioner-Association. 5. It is also averred that the Petitioner-Association was only interested in ousting the Respondent No. 5 from the bid as disclosed by their conducts in their meeting with the Respondent No. 4 on 14.6.2006, which took place after postponing the date of tender by one week at the desire of the contractors representing the Petitioner-Association. According to the answering Respondents, their position has been fully explained in the letter dated 26.5.2006 of the Chief Engineer, HQ, Shillong Zone (Annexure R-XIII). When the Respondent No. 4 could not accommodate the unreasonable request of the said contractors, averred the answering Respondents, they were informed that the tender of the Respondent No. 5 would not be withdrawn and that the tender was fixed on 19.6.2006, which was made known to the seven enlisted tenderers as well as the Respondent No. 5 by telephonically and by the telegram dated 14.6.2006. The Respondents, therefore, deny that the enlisted contractors were not aware of the telegram message for the tender fixed on 19.6.2006. They further contend that none of the enlisted contractors submitted their tenders obviously to show their protest and solidarity against the department and that the fact that the Respondent No. 5 quoted a sum of Rs. 33,47,924.70p for the same work for which the lowest rate quoted by these enlisted contractors was Rs. 49,95,375/- in the first call speaks volume about their intention to form a cartel. The Respondents also deny that there was any amendment in the tender and assert that the postponement for one week was done solely on the request of the said enlisted contractors. It is denied by them that the allotment of the work made by them in favour of the Respondent No. 5 is malafide and asserted that the same is issued to him as a real competitor, who is competent and willing to execute the same at competitive and reasonable rates. The answering Respondents, therefore, contend that the writ petition, which is filed by the Petitioner with the sole aim of forcing the Department to concede their unreasonable and unjust demand, is liable to be dismissed with costs. 6. The answering Respondents, therefore, contend that the writ petition, which is filed by the Petitioner with the sole aim of forcing the Department to concede their unreasonable and unjust demand, is liable to be dismissed with costs. 6. The Petitioner in answer to the counter affidavit of the Respondents, filed its rejoinder affidavit wherein it is stated that the Respondents violated the guidelines mentioned in Clause 2(b) and (c) contained in the letter dated 16.7.2004 (which is not produced) requiring that in case of selective tendering or where inadequate applications are received for issue of tender, suitable contractor may be selected by the Accepting Officer from the approved list of contractors and that no press advertisement was issued in respect of the NIT in question; that the Notification was never issued revised in conformity with the new guidelines; that even during the second call of tender, no press advertisement was made; that the selection process for encouraging more enlisted contractors to submit application for the tender was not made by the Respondent No. 4; that Clause 1(a)(iii) of the Guidelines issued on 6.4.2005 (Annexure R/1) requiring advertisement in the newspaper for work costing over Rupees Twenty lakhs has not been followed; that the Respondents did not follow Rule 1(b)(N)(?) in its true spirit since the Respondent No. 5 had not completed any work of the value of Rupees Twenty seven lakhs; that the Respondent No. 5 cannot be considered for fresh enlistment as he is merely working as the holder of attorney power on behalf of M/s K.K. Jain. 7. 7. The Petitioner also claims in the rejoinder that the Respondent No. 5 assured the office bearers of the Association that the correct policy and guidelines would be followed and other eligible contractors would be selected for submission of the bid, for which the revised notification would be issued; that the Respondent No. 4 was requested to postpone the tender for two weeks after following the new selection process; that the MES BAI, Guwahati suggested names of few eligible contractors for issue of the said tender to favour proper bidding process; that by ignoring the deliberation of the meeting, the Respondent No. 4 behind the back of the Petitioner forwarded the said telegram indicating submission of the bid on 19.6.2006 mentioning it as "19.8.06", which is misleading, to M/s Kakwani Builders, when it was out of station; that another contractor, namely M/s V.V. Construction received the telegram only on 22.6.2006 i.e. after the expiry of the date for submission of the tender; that even to date, no confirmation copy of the telegram has been received by any contractor, which shows that no confirmation of the copy of the telegram was ever sent to the contractors and that the Department overstepped the rules in haste to favour and accommodate uneligible contractor like the Respondent No. 5. It is reiterated by the Petitioner that the Respondent No. 5 did not fulfill the eligibility criteria for carrying out comparable value of work and that they are out to favour the Respondent No. 5 in total violation and in breach of the guidelines laid down by themselves. These are thus the sum and substance of the case of the Petitioner. 8. I have heard Mr. S.R. Sen, the learned senior counsel assisted by Mrs. P.D.B. Baruah, the learned Counsel for the Petitioner. I have also heard Mr. S.C. Shyam, the learned Central Government Counsel appearing for the Union of India and others and also Mr. S. Bhattacharya, the learned Counsel for the Respondent No. 5. Upon hearing them and after going through the pleadings of the parties, the first point for consideration in this writ petition is whether the Respondent No. 5 is eligible for participating in the tender process? Mr. S. Bhattacharya, the learned Counsel for the Respondent No. 5. Upon hearing them and after going through the pleadings of the parties, the first point for consideration in this writ petition is whether the Respondent No. 5 is eligible for participating in the tender process? Mr. S.R. Sen, the learned senior counsel attacks his eligibility on the grounds that he has not completed at least one work in the MES and did not fulfill the criteria laid down in Appendices B-1 and B-2 and that the work executed by him on behalf of M/s K.K. Jain is not in his individual capacity but as the holder of attorney of such firm and that the solvency certificate submitted by him was issued not by a Scheduled Bank but by a Garmin Bank, which is admittedly a non-Scheduled Bank. In this connection, he draws my attention to Clause 17 and the Note thereto and the criteria for fresh enlistment/upgradation stipulated in Appendix B-I to the Policy and Guidelines contained in the Circular No. 66546/Policy/EB dated 30.11.2004 (Annexure-D) and Annexure-I to Appendix-B. On the other hand, Mr. S.C. Shyam, the learned CGC, contends that the aforesaid guidelines relate to enlistment of contractors for MES and has nothing to do with issuing tenders to un-enlisted contractors as in the case here. In this connection, he invites my attention to Clause 1(b)(iv) of the Guidelines contained in the Circular dated 8.4.2005 (Annexure/R-I) and those contained in Clause 2(d) of the Circular dated 19.5.2005 (Annexure/R-II) and submits that in view of these latest guidelines and the approval obtained from the competent authority vide the letter dated 9.5.2006 (Annexure/R-XIIA), no illegality has been committed by the Respondent No. 4 in issuing the tender documents to the Respondent No. 5. 9. No doubt, note to Clause 17 of the Guidelines contained in Annexure-D prohibits the enlistment of any firm either on the basis of having worked on power of attorney or under any other capacity or on the basis of job order, etc. The main provision, namely, Clause 17 prescribes that fresh enlistment will be allowed to contractors who have already satisfactorily completed at least one work in MES during the preceding 5 years upto 31 December, 2004 and have fulfilled the criteria laid down in Appendices B-1 and B-2 based on revised tendering limits. The main provision, namely, Clause 17 prescribes that fresh enlistment will be allowed to contractors who have already satisfactorily completed at least one work in MES during the preceding 5 years upto 31 December, 2004 and have fulfilled the criteria laid down in Appendices B-1 and B-2 based on revised tendering limits. What has emerged from above appears to be that for enlistment of contractors in the MES, the aforesaid guidelines shall have to be followed. The pertinent question, however, is whether these conditions shall also have to be fulfilled for selection of contractors for issue of tenders. Ordinarily, tender shall have to be issued only to contractors enlisted with the MES. However, a perusal of the policy contained in the circular dated 8.4.2005 (Annexure/R-1) will show that there are cases in which tender papers may be issued to un-enlisted contractors, who are not contractors enlisted with the MES. This is evident from Clause 1(b)(iv) of the said Circular which provides that tenders may also be issued to un-enlisted contractors in case sufficient applications are not received after obtaining approval of next higher engineer authority provided the contractors meet the criteria of enlistment corresponding to the value of work. This provision has been amended on 5.11.2004 and again on 19.5.2005 vide Annexure/R-II, which reads thus: 2(d) Issue of tender to un-enlisted contractors: Tender to un-enlisted applicant contractors may be issued, even if sufficient applications are received from eligible enlisted contractors, after obtaining approval of next higher Engineer Authority provided such un-enlisted contractors meet the enlistment corresponding to value of work. 10. It is interesting to note that none of the conditions and criteria laid down for enlistment of contractors under MES have been amended while the conditions and criteria for selection of contractors for issue of tender have been amended from time to time. It is also interesting to note that the prohibition against enlistment of contractor, who has not executed any contract work otherwise than as a holder of power of attorney or under any other capacity or on the basis of job order, etc. is not made expressly applicable to the selection of contractor for issue of tender. The common denominator of both the policy/guidelines at Annexure-D and Annexure/R-1 and R-II is the condition to meet the enlistment criteria corresponding to the value of work. What are the enlistment criteria corresponding to the value of work? is not made expressly applicable to the selection of contractor for issue of tender. The common denominator of both the policy/guidelines at Annexure-D and Annexure/R-1 and R-II is the condition to meet the enlistment criteria corresponding to the value of work. What are the enlistment criteria corresponding to the value of work? Even though these criteria are not specifically mentioned in Annexure/R-I and R-II, there can be no doubt that these criteria can only mean the criteria referred to in Appendices B-1 and B-2 to the Guidelines for the enlistment of contractors under MES at Annexure-D. This is the condition of fulfilling those criteria. Therefore, a comparative reading of the two guidelines at Annexure-D and Annexure/R-I and R-II respectively indicates in clear terms that enlistment of contractors and selection of contractors for issue of tender are not necessarily one and the same. Consequently, I hold that an un-enlisted contractor who has only worked on power of attorney can, nevertheless, be selected for issue of tender subject to his meeting the criteria enlistment criteria corresponding to value of work and to obtaining the approval of the next higher Engineer Authority. In the view that I have taken, the Respondent No. 4 cannot be said to be barred from issuing tender to the Respondent No. 5 on the ground of having worked on power of attorney. 11. The next question which falls for consideration then is whether the Respondent No. 5 meets the enlistment criteria stipulated in Appendices B-1 and B-2 to the Guidelines contained in Annexure-D. As the value of work involved in this case is Rs. 27.50 lakhs, in terms of Appendix B-1, the contractor must be a "D" class contractor, must also be a graduate engineer from a recognized Government recognized institution, must have a minimum experience of 2 years, and who is insolvent/financially sound for engagement of work upto Rupees Thirty lakhs, must have the experience of two works costing not less than Rupees Fifteen lakhs or one work costing not less than Rupees Twenty two and half lakhs in the preceding five years. The registration certificate dated 22.3.2006 issued by the Executive Engineer, PWD, Kokrajhar Building Division at Annexure-IX shows that the Respondent No. 5 is a Class-1(C) category contractor while the certificate dated 20.3.2006 issued by the E.E. Garrison Engineer, Guwahati (Annexure/R-X) indicates that he is a Power of Attorney holder for execution of the work worth Rs. 2.54 crores. Besides, the Respondent No. 5 is certified to be a graduate engineer vide Annexure/R-IV, in so far as the solvency of the Respondent No. 5 is concerned, Annexure/R-VIII shows that UBK Gramin Bank, Dhaniampur Bianch certified him to be capable of handling any construction work amounting to Rs. 50 lakhs and is ready to accommodate him any overdraft/other credit facilities to meet his working capital. The policy and guidelines quoted earlier do not expressly insist the production of solvency certificate by the Respondent No. 5 from a Scheduled Bank for meeting the criteria laid down in Appendix-B. Moreover, the genuineness of the solvency certificate as well as the capacity of the Respondent No. 5 to raise necessary funds from this Banks have not been denied or disputed by the Petitioner. Consequently, the submission made by the learned senior counsel for the Petitioner to the contrary does not hold water. Thus, on my findings on the points urged by the learned Counsel for the Petitioner, it cannot be said that the Respondent No. 5 is not eligible for participating in this tender. 12. It is next contained by Mr. S.R. Sen, the learned senior counsel for the Petitioner that no press advertisement was ever issued by the answering Respondents for the Notice Inviting Tender dated 24.11.2005 which is violative of Clause 1(a)(iii) of the Guidelines contained in Annexure/R-I and, therefore, the entire tender process stood vitiated. In my opinion, this submission need not detain me further inasmuch as the contractors represented by the Petitioner having participated in the tender without any protest on this count, are now estopped from challenging this omission on the part of the answering Respondents. As for the second limb of his contention that the second call of tender was made without advertisement of the NIT in newspaper, a perusal of the said Clause 1(a)(iii) does show that in respect of works costing more than Rs. As for the second limb of his contention that the second call of tender was made without advertisement of the NIT in newspaper, a perusal of the said Clause 1(a)(iii) does show that in respect of works costing more than Rs. 20 lakhs, the answering Respondents are required to advertise the NIT in the newspapers through the DAVP, in addition to displaying the same in the Notice Boards of EE/SE of CPWD and State PWD stationed in and around the place of work and HQ etc. As noted earlier, the value of the work in the instant case is more than Rs. 20 lakhs. Now, the question to be determined is whether the second call for tender is a re-tender or not. If it is found that the second call of tender is a re-tender or re-invitation of tender, then the Notice Inviting Tender (re-tender) shall have to be displayed in the newspapers through DAVP in addition to the other mode prescribed in the said Clause 1(a)(iii) of the Guidelines at Annexure/R-1. The answering Respondents drawing my attention to Clause 25 of Letter No. 3 contained in the compendium of Instructions on Contracts, Part I, contend that the omission to advertise the Notice Inviting re-tender, on the facts and circumstances of this case, is fully authorized by Clause 25.2. In paragraph 14 of their counter affidavit, it is stated that the tender under consideration was advertised and the notice of tender was issued on 24 November 2005 wherein applications were invited from enlisted MES, PWD, CPWD and Railway contractors and that the estimated value of the work was stated to be Rs. 27.5 lakhs. It is also stated therein that the tender was issued to all the seven enlisted applicants on 9.1.2006 in which six quoted tenders were received back on 28.2.2006 with the lowest quoted tender being Rs. 49,95,375.00 and that the lowest quoted amount was thus considered abnormally high and it was decided to go for re-issue of tender with additional applicants to stimulate better competition. 13. There is no dispute that the lowest quoted rate of the enlisted tenderers, who are also members of the Petitioner-Association, was Rs. 49,95,375/-, quoted by M/s Krishna Constructions. To make the position clear, a comparative statement of tenders prepared by the Respondent-authorities at Annexure/R-XII is reproduced below: Name of contractor Quoted Amount Remarks 1. 13. There is no dispute that the lowest quoted rate of the enlisted tenderers, who are also members of the Petitioner-Association, was Rs. 49,95,375/-, quoted by M/s Krishna Constructions. To make the position clear, a comparative statement of tenders prepared by the Respondent-authorities at Annexure/R-XII is reproduced below: Name of contractor Quoted Amount Remarks 1. Rana Kumar Phookan 51, 28, 476/- D-30 2. M/s Kakwani Builders, E-30 53, 85, 902/50 3. M/s G.K. Traders, Less discount 7 % C-50 56, 24, 107/- on overall quoted amt. 4. M/s Nirmal Das & Co., C-141 57, 49, 774=35 5. M/s Krishna Constructions E-68 49, 95, 375/- 6. M/s V.V. Construction, E-23 No Tender 7. M/s Dil Singh Biswa 55,97,409/95 and Co. E-22 14. There is also no dispute at the bar that in the second call of the tenders, the rate quoted by the Respondent No. 5 is Rs. 33,47,924.70/- in the estimated cost of Rs. 27.50 lakhs. Reading and re-reading of paragraphs No. 9,10,11 and 12 of the rejoinder affidavit of the Petitioner unmistakably indicate that the grievances of the Petitioner/Association pertain mostly to the ineligibility of the Respondent No. 5, of the refusal of the Respondent-authorities to exclude him from the tender and of his refusal to accept the suggested names of few eligible contractors for issue of the tenders to favour proper bidding process. Nowhere in the writ petition does it ever claim that the enlisted tenderers or any of them are willing to quote a rate less than, or equal to, the rate quoted by the Respondent No. 5. Nor does it claim that the rate quoted by the Respondent No. 5 at Rs. 33,47,924.70p for the estimated cost of Rs. 27.50 lakhs is unreasonable or abnormally low. As for the eligibility of the Respondent No. 5, I have already given by finding elsewhere that he is eligible for the bid. The next point for consideration is whether the inclusion of the Respondent No. 5 in the second call of tender is permissible by law? It is the contention of the Respondent-authorities that the course of action taken by them is fully permissible under Clause 25.2 of Letter No. 3 of Compendium of Instructions on Contracts (Part-I, Pre-Contract Stage). Clause 25 of Letter No. 3 deals with the procedure for re-invitation of tenders. It is the contention of the Respondent-authorities that the course of action taken by them is fully permissible under Clause 25.2 of Letter No. 3 of Compendium of Instructions on Contracts (Part-I, Pre-Contract Stage). Clause 25 of Letter No. 3 deals with the procedure for re-invitation of tenders. Clause 25.1 says that re-invitation of tenders is normally resorted to (a) when the lowest tender obtained is unreasonable, or (b) when the lowest tender obtained exceed the amount available under the Administrative Approval and it is proposed to modify the design to bring down the cost. Whether re-tendering can be resorted to on all and sundry occasions is completely answered by Clause 25.2 of the Letter No. 3, which reads thus: 25.2 Re-tendering must not be resorted to as a matter of routine. Wherever a lowest tender received is considered unreasonable or high, the reasons for high tender should be ascertained from tenderer and fully examined before deciding to re-tender for the work. Before re-tendering, it must be further ensured that suitable modifications are made in the design and time requirement as considered necessary and where possible tenders issued to additional contractors to stimulate competition. (emphasis addeded) 16. The provision extracted above plainly shows that some discretion is given to the authorities for re-tendering, which can be done only as a last resort and that some discretionary power is also given to the authorities to issue tenders to additional contractors to encourage competition among the contractors. This mechanism is obviously devised to facilitate speedy completion of the tender process and to avoid the cumbersome process of re-tender when competitive bidding is not in sight or is prevented by the formation of cartel by a group of contractors, etc. In the instant case, as found by me, the enlisted tenderers belonging to the Petitioner-Association neither by me, the enlisted tenderers belonging to the Petitioner-Association neither offered a more competitive rate than the one offered by the Respondent No. 5 in the series of meeting they held with the Respondent No. 2 and 4 nor did they ever question the reasonableness of the rate quoted by the Respondent No. 5. Though, under the circumstances, it would have been better or fairer for the Respondent-authorities to invite fresh tender, yet the conduct of the Petitioner, particularly, their insistence that the tender process should be confined to their members only and of the absence of any offer on their part to quote a rate lower than, or, at least, equal to, the rate offered by the Respondent No. 5 can certainly create an impression on the minds of the Respondent-authorities that the Petitioner have formed a cartel for predatory quotation and sought to eliminate competitive biddings. The principles of judicial review is certainly applicable to the exercise of contractual powers by the instrumentalities of the State to prevent arbitrariness or favouritism. However, there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. The right to refuse the lowest or any other tender is always available to the Government subject to the limitations inherent in Article 14 of the Constitution. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. Judicial quest in administrative matters have been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues or social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such unfairness is set right by judicial review. The test to be applied for judicial intervention in a judicial review, simply put, is whether something has gone wrong of a nature and degree which requires its intervention-see Tata Cellular v. Union of India (1994) 6 SCC 651 . 17. It is also trite that every deviation from norms or guidelines by the executive authorities does not warrant the interference of a writ court unless such deviation is demonstrated to be against an overwhelming public interest. This is evident from the decision of the Apex Court in Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 , when it is observed at para 7: 7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, CCE v. Dunlop India Ltd. Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. IVR Construction Ltd. The award of a 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 paramount are commercial considerations. 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. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides. Unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. 18. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. 18. Clause 25 of Letter No. 3 of the said compensation undoubtedly gives more than one choice to the Respondent-authorities, namely, the discretion to re-tender for the work in question or to issue tenders to additional contractors to stimulate competition, if, among others, the lowest tender obtained is fund to be unreasonable. It is also cautioned therein that re-tendering must not be resorted to as a matter of routine, and the reasons for high tender should be ascertained from tenderer and fully examined before deciding to re-tender for the work. In para 14 of the counter-affidavit, it is asserted, which has not been specifically denied by the Petitioner, that the lowest quoted amount (of the enlisted contractors) was thus considered abnormally high and it was decided to go for re-issue of tender with additional applicants to stimulate competition and that matters in that regard was discussed with the tenderers of the first call and with other enlisted contractors of the area in order ascertain the reasons for such high rate but neither plausible/convincing reply to this aspect could be received from these contractors nor any of the enlisted contractor came forward to apply for the work and show willingness to quote reasonable market rates except the Respondent No. 5, who is already working near in the near vicinity of the site of work under consideration. In view of this categorical assertion made by the Respondent-authorities and in the absence of specific denial by the Petitioner, I need say no more in this behalf. The Respondent-authorities do have certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there may be room for reasonable people to hold different opinions as to which is to be preferred. Once it is held that the Respondent-authorities have been compelled by the circumstances confronting them, as adverted to earlier, to issue the tender to the Respondent No. 5, the course of action taken by them does not suffer from arbitrariness but is fully permissible by the Clause 25 of Letter No. 3 of the Compendium. Once it is held that the Respondent-authorities have been compelled by the circumstances confronting them, as adverted to earlier, to issue the tender to the Respondent No. 5, the course of action taken by them does not suffer from arbitrariness but is fully permissible by the Clause 25 of Letter No. 3 of the Compendium. It is not the business of this Court to substitute its judgment for the judgment of the Respondent-authorities in such a case. 19. The result of the forgoing discussion is that this writ petition has no merit and is liable to be dismissed, which I hereby do. However, on the facts and circumstances of the case, the parties are directed to bear their own costs. The interim order passed earlier stands vacated. Petition dismissed.