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2009 DIGILAW 718 (GAU)

Technostrength (P. ) Ltd. v. Oil India Ltd.

2009-09-24

I.A.ANSARI

body2009
JUDGMENT I.A. Ansari, J. 1. The respondent No. 1, namely, Oil India Ltd., a Government of India Undertaking, published a global tender, on 2.1.2008, inviting bid applications for installing and commissioning 2(two) sets of Mud Tank System for BHEL make AC-SCR Drilling Rigs with tank system, each set consisting of (i) three numbers of active tanks and (ii) three numbers of reserve tanks. The said tender was invited under Single Stage Two Bid System, namely, Techno Commercial Unpriced Bid' and 'Commercial Bid'. Responding to the Notice Inviting Tender ('the NIT), amongst others, the respondent No. 5 herein, which is a proprietorial firm registered, under National Small Scale Industries Corporation Ltd., and the petitioner, which is a company registered under the Companies Act, 1956, submitted their tenders. By a letter, dated 4.4.2008, respondent No. 1 sought for certain clarifications from the petitioner company with regard to the petitioner company's technical bid. A reply to the letter, dated 4.4.2008, aforementioned, was issued by the petitioner-company on 9.4.2008. The petitioner-company, however, claims that it, later on, came to know that the petitioner-company's bid was found to be not conforming to the specifications of the NIT and, treating the petitioner-company's bid as technically non-responsive, respondent No. 1 had rejected the petitioner-company's Techno-Commercial Unpriced Bid. Consequently, the 'Commercial Bid' of the petitioner-company was not opened. However, respondent No. 5 was held qualified by the Techno-Evaluation Committee and, in consequence of this finding, the price bid of the respondent No. 5, along with another bidder, namely, BHEL, was opened and respondent No. 5 was selected for awarding the contract. 2. The respondent No. 1 has, however, not been able to place the supply order with the respondent No. 5 inasmuch as the petitioner-company has, in the meanwhile, filed this writ petition, under Article226 of the Constitution of India, challenging, inter alia, rejection of the petitioner-company's technical bid as non-responsive and also the selection of respondent No. 5, as awardee of the contract, in this writ petition, and an order, on 5.6.2008, was passed directing the respondent No. 1 not to finalise the said tender process. 3. 3. As reflected by the writ petition, the petitioner-company's case is, in brief, thus: The petitioner-company has been carrying on similar nature of works since the year 1982 and has gained not only sufficient experience, but also has acquired international reputation and goodwill in installation and commission of Mud Tank System inasmuch as it has been supplying and installing Mud Tank Systems and drilling equipments, during the past several years, to various foreign companies like Kuwait Drilling Company and even to national public sector undertakings, such as, ONGC Ltd., etc. Because of the vast experience and technical competence, which the petitioner-company has acquired, it had been quite confident that if the selection were done on merit, the petitioner-company's technical bid could not have been rejected as technically non-responsive. The Techno-Commercial bid, submitted by the petitioner-company, was enough to meet any recent technological development inasmuch as the petitioner-company has been manufacturing, supplying, installing and commissioning Mud Tank System and accessories of drilling to different companies all over the world and the technical competence, experience and reputation, which-it has gained, ought to have made it qualified in the Techno-Commercial Unpriced bid, but the petitioner-company's technical bid has been rejected arbitrarily and such rejection suffer from non-application of mind and mala fide. The Mud Tank System, which the petitioner-company has supplied to M/s. Kuwait Drilling Company, are similar to ones, which the respondent No. 1, in terms of the global tender, had sought to obtain; whereas respondent No. 5, according to the petitioner-company, does not have requisite experience of manufacturing Mud Tank System nor has it supplied Mud Tank System inasmuch as it is, according to the petitioner-company, a Delhi based proprietorial firm having turn over of about rupees two crores, but it had to obtain supply order on the basis of a joint venture agreement, the agreement, so relied upon, rests on a memorandum of understanding ('the MoU') between the respondent No. 5 and a New Zealand based company, namely, Drilling Fluid Equipment of New Zealand. The so called MoU holder, "Drilling Fluid Equipment of New Zealand", also, according to the petitioner-company, does not appear to have any such experience. The period of experience, which the bidding documents had imposed, was extended from five to six years with ulterior motive to help respondent No. 5 qualify in the tender process. 4. The so called MoU holder, "Drilling Fluid Equipment of New Zealand", also, according to the petitioner-company, does not appear to have any such experience. The period of experience, which the bidding documents had imposed, was extended from five to six years with ulterior motive to help respondent No. 5 qualify in the tender process. 4. Resisting the writ petition, respondent No. 1 has filed its counter affidavit, the case of the respondent No. 1 is, in brief, thus: In order to obtain best offer, respondent No. 1 had sought for, vide its letter, dated 4.4.2008, clarifications from not only the petitioner-company, but from other bidders too. The petitioner-company responded by offering its clarifications by means of its letter, dated 9.4.2008. In its clarificatory letter, dated 9.4.2008, aforementioned, though the petitioner-company had replied to all the 16 points, which had been raised by the respondent No. 1, in its letter, dated 4.4.2008, aforementioned, the second part of point No. 2 of the respondent No. 1's query, which related to the make of 'Isolating Valve', was not replied to by the petitioner-company. The petitioner-company, thus, remained wholly silent as to what the make of Isolating Valve of the Mud Tank System, which it had sought to supply, was. Though the petitioner-company, having not replied to each and every point raised by the respondent No. 1 in its letter, dated 4.4.2008, ought to have been held not qualified in its Techno-Commercial Unpriced Bid, the petitioner-company's bid was, as a matter of fact, rejected for two reasons, namely, (i) the petitioner-company's offer does not fulfill the requirements of Clause (2) of bid rejection criteria and (ii) the bidder (i.e., the petitioner-company) had not indicated make of the 'Isolating Valve' even after clarification had been sought for, in this regard, from the petitioner-company by the respondent No. 1. The further case of the respondent No. 1, as regards rejection of the petitioner-company's bid, is that the petitioner-company may have been supplying drilling equipments for the past ten years as claimed by the petitioner-company, the fact, however, remains that the past experience could not have made the petitioner-company succeed in its technical bid, when they had not replied to all the clarifications, which had been asked for by the respondent No. 1 in the letter, dated 4.4.2008, aforementioned, and also when the petitioner-company's technical bid had not fulfilled Clause No. (2) of the bid rejection criteria, which had imposed the condition that the bidder shall be a person, who must have sold, at least, two Mud Tank Systems in the last five years preceding bid closing date and all the bidders, including the petitioner-company, were required to enclose documentary evidence in support of sale of, at least, two Mud Tank Systems during the period as set forth inasmuch as the Mud Tank System, which the petitioner-company had offered, is 'unitized' on trailer; whereas what the respondent No. 1 had invited tender for was the Mud Tank System, which is 'skid mounted'. The respondent No. 1 has, thus, denied that the rejection of the petitioner-company's bid was arbitrary, discriminatory, capricious, illegal or mala fide. The unpriced bid was opened on 12.3.2008. The commercial bid was opened on 28.5.2008 and, two months, thereafter, the writ petition has been filed with ulterior motive. The writ petition may, therefore, be rejected. 5. As regards the question as to why the validity of the period of tender process was extended, respondent No. 1 had, thus, to say: 15. That the validity period as per under Clause 7.15 of General Terms and Conditions of the Global tender is 120 days from the date of opening of the price hid, hut the successful bidder offered 180 days as the validity period. In the instant case, therefore, since the price bid was opened on 12.3.2008 the validity period of the bid offered by the successful bidder, i.e., M/s. Gaurav Associates will expire on 8.9.2008, and thereafter, the successful bidder will have market. In the instant case, therefore, since the price bid was opened on 12.3.2008 the validity period of the bid offered by the successful bidder, i.e., M/s. Gaurav Associates will expire on 8.9.2008, and thereafter, the successful bidder will have market. Besides the above implications, in the event of withdrawal of offer after expiry of validity period by the lowest successful bidder, the company may have to go for the re-tendering in which event there is possibility that the cost of equipments, machineries, etc., may be higher than the present rates quoted by the lowest successful bidder, i.e., M/s. Gaurav Associates, thus, causing extra financial burden upon our company. 6. I have heard Mr. K.N. Choudhury, learned senior counsel, appearing oh behalf of the petitioner-company, and Mr. M.Z. Ahmed, learned senior counsel, appearing for the respondent Nos. 1 to 4. I have also heard Mr. N. Dutta, learned senior counsel, appearing on behalf of the respondent No. 5. 7. While considering the present writ petition, what is of utmost importance to note is that if the petitioner company's technical bid is found to have been rightly rejected, it would not be possible to enter into the question as to whether the petitioner-company's rejection was mala fide and arbitrary. It may be mentioned that though, in the writ petition, accusations have been made that the petitioner-company's rejection was arbitrary and mala fide, what needs to be noted is that nothing, in effect, has been pleaded, in this writ petition, to show as to how the rejection of the petitioner-company's bid can be said to be arbitrary and mala fide. In fact, a careful reading of the pleadings, contained in the writ petition, shows that the petitioner-company's contention is that since it has been in the business of manufacturing Mud Tank System and has been supplying, installing and commissioning Mud Tank System for a long period of time, rejection of the bid of the petitioner-company, on the ground that its bid was not technically responsive, is nothing but arbitrary and mala fide. 8. Two pertinent reasons, as already indicated above, have been assigned by the respondent No. 1 as regards the question as to why the petitioner-company's technical bid was rejected. 9. 8. Two pertinent reasons, as already indicated above, have been assigned by the respondent No. 1 as regards the question as to why the petitioner-company's technical bid was rejected. 9. While considering the ground, on which the petitioner-company's offer was rejected, it needs to be noted that according to respondent No. 1, one of the reasons was that the bidder (petitioner-company) did not indicate, in its bid, the make of the 'Isolating Valve', and the bidder (i.e., petitioner-company) did not reply even when clarification was sought for, in this regard, by respondent No. 1 by letter, dated 4.4.2008, aforementioned. Explaining elaborately this aspect of the case, respondent No. 1 has averred, in its affidavit, that it had raised 16 queries, in its letter, dated 4.4.2008, but the petitioner-company did not reply to the second part of the point (i.e., query) No. 2. Let us, therefore, consider as to what the point (i.e., query) No. 2 was. The Point No. 2 (i.e., query No. 2), reads: 2. Confirm in particular the make of 'Butterfly Valve's (Annexure I, Item No. 10(c) and 'Isolating Valve's (Annexure I, Item No. 10(q) and forward catalogue/literature if the made is different from tender specified. 10. A microscopic reading of the above query, made by the respondent No. 1 from the petitioner-company, reveals that the petitioner-company was clearly and specifically asked by the respondent No. 1 to confirm the make of the 'Butterfly Valve' and 'Isolating Valve', used in the Mud Tank System, which the petitioner-company had sought, in its offer, to supply/install/commission. Bearing this aspect of the matter in mind, when I come to the petitioner-company's letter, dated 9.4.2008, whereby it had replied to the respondent Nos. 1's letter, dated 4.4.2008, I notice that the petitioner-company's reply, as regard point No. 2, reads as under: 2. We confirm that "Butterfly Valve's are of 12" size (with moulded seat) and of AUDCO India Ltd. Or Intervalve, Pune make only. 11. When the point No. 2, set out in the respondent No. 1's letter, dated 4.4.2008, is considered in the light of the petitioner-company's reply, to point No. 2, what becomes clear is that the respondent No. 1 had asked the petitioner-company to give particulars of, amongst others, the make of the 'Butterfly Valve' and the 'Isolating Valve'. 11. When the point No. 2, set out in the respondent No. 1's letter, dated 4.4.2008, is considered in the light of the petitioner-company's reply, to point No. 2, what becomes clear is that the respondent No. 1 had asked the petitioner-company to give particulars of, amongst others, the make of the 'Butterfly Valve' and the 'Isolating Valve'. While the petitioner-company disclosed the make of 'Butterfly Valve', it did not state or reveal as to what the make of the 'Isolating Valve' was. 12. Though, at the time of hearing, it is sought to be contended, on behalf of the petitioner-company, on the basis of the pleadings of the petitioner-company, that the 'Butterfly Valve' and 'Isolating Valve' are one and the same thing, this Court is not technically qualified to make any comment on this aspect of the petitioner-company's case. This apart, if the 'Butterfly Valve' and 'Isolating Valve' were one and the same thing, nothing had really prevented the petitioner-company from giving an explicit reply, in this regard, to the respondent No. 1's letter, dated 4.4.2008, aforementioned by either furnishing the make of 'Isolating Valve' or by clarifying that according to the petitioner-company, 'Butterfly Valve' and 'Isolating Valve' are but one and the same thing. Furthermore, there is nothing on record to show that the 'Butterfly Valve' and 'Isolating Valve' are but one and the same thing. Consequently, the specific query, made by the respondent No. 1, as to what the make of the 'Isolating Valve', (which the petitioner-company had quoted), was remained unanswered. Viewed, thus, the reason, assigned by respondent No. 1, for holding the petitioner-company's bid as technically non-responsive, cannot be said to be unfounded, capricious, arbitrary and/or mala fide. If a bidder's bid is found technically non-responsive, the question as to what length of experience it has in the field, which may be the subject-matter of a tender process, becomes immaterial and redundant. When considered in this light, it becomes clear that when the petitioner-company's bid was technically non-responsive, because of its omission to clarify as to what make of the Isolating Valve was, no further enquiry was required to be made by the respondent No. 1 as to what length of experience the petitioner-company had in the field of installation and commission of Mud Tank System. 13. 13. Yet another ground, assigned by respondent No. 1, as already indicated above, for rejecting the petitioner-company's bid, is that the petitioner-company had failed to fulfill the bid rejection criterion as given in clause No. (2). 14. Let us, now, turn to clause No. 2 of the bid rejection criterion. The relevant portion of clause No. 2 of the bid rejection criterion reads: The bidder must have sold, at least, 2 sets of Mud Tank System in last 5 years preceding bid-closing date. Bidders are required to enclose documentary evidence in this regard. 14A. Coupled with the above, the technical details of the Mud Tank System to be supplied, read, inter alia, thus: Master Skid: The tanks should be mounted on three runner oilfield type skid fabricated out of 300 nm beams (ISMB) reinforced with suitable channels and angles. The ends of the skid should be projected out from the tank by 300 mm and curved upward 150 NB x 80 SCH pipe with provision for lifting should reinforce the end of skid for tail boarding. 15. In the light of the above technical details, let us, now, determine if the objection of the respondent No. 1 that the Mud Tank System, which the petitioner-company had supplied, in the past, were not similar to the ones, which the respondent No. 1 had invited tenders for. In this regard, it bears repetition that according to respondent No. 1, the Mud Tank System, which the petitioner-company had supplied, in the past, were not similar to the Mud Tank System, which the respondent No. 1 had invited bids for, inasmuch as the Mud Tank System, which the petitioner-company has offered, is 'unitized' on trailer; whereas the requirement of the respondent No. 1, as per specifications of the NIT, is Skid-mounted Mud Tank System. 16. It has been argued, on behalf of the petitioner-company, that the 'unitized' Mud Tank System, which the petitioner-company offered, is a more viable item and that it can be used even in place of 'skid mounted' Mud Tank System. It is, therefore, pertinent, at this juncture, to refer to the specifications in respect of the Mud Tank System, as given in the bid documents. 17. It is, therefore, pertinent, at this juncture, to refer to the specifications in respect of the Mud Tank System, as given in the bid documents. 17. From a careful reading of the technical details, reproduced above, it becomes transparent that, according to the bidding requirements, the Tanks should be mounted on three, runner oilfield type skid fabricated out of 300 nm beams (ISMB) reinforced with suitable channels and angles and that the ends of the skid should be projected out from the tank by 300 mm and curved upward 150 NB x 80 SCH pipe with provision for lifting should reinforce the end of skid for tail boarding. As this Court is not technically qualified to determine as to whether the Tank System, 'unitized' on trailer, as offered by the petitioner-company, is more useful or not, this Court, (being not technically qualified), cannot enter into this controversy and has to, therefore, hold, and, thus, holds, that as the petitioner-company had failed to meet the specifications in respect of the Mud Tank System, which the petitioner-company had offered to supply, respondent No. 1 was free to treat the petitioner-company's bid as technically non-responsive. 18. I may point out that though the petitioner-company has contended, at the time of hearing of this writ petition, that the term of the contract was arbitrarily modified by making 'six years experience', in place of 'five years experience', as the requisite experience for the purpose of making a bidder eligible to participate in the bidding process, it is important to point out that the petitioner-company has, having not put to challenge, in this writ petition, the corrigendum/addendum, whereby the terms of the NIT, were modified, there is really no foundation for making such accusation. This apart, the terms and/or conditions of an NIT cannot become the subject of judicial review unless the terms and conditions of the NIT are put to challenge, in accordance with law, as mala fide, motivated, irrational, or arbitrary. When the petitioner-company was disqualified on the ground that its offer had failed to meet the required technical specifications, as given in the NIT read with the bidding documents, the petitioner-company cannot be treated as eligible to challenge the award of contract in favour of respondent No. 5 inasmuch as an ineligible bidder cannot question the eligibility of another bidder. When the petitioner-company was disqualified on the ground that its offer had failed to meet the required technical specifications, as given in the NIT read with the bidding documents, the petitioner-company cannot be treated as eligible to challenge the award of contract in favour of respondent No. 5 inasmuch as an ineligible bidder cannot question the eligibility of another bidder. It is extremely important to note that ordinarily, at the instance of a bidder, who himself is ineligible, exercise of judicial review to determine if the selected bidder had met the eligibility criteria or not may not be undertaken by the Court. Held the Apex Court, in Raunaq International Ltd. v. IVR Construction Ltd. (1999) 1 SCC 492 , 27. ...Therefore, any judicial relief at the instance of a party, which does not fulfill the requisite criteria, seems to be misplaced. 19. Though it has been urged, on behalf of the petitioner-company, at the time of hearing of the writ petition, that' in the facts and attending circumstances of the present case, this Court should constitute an expert committee to examine the matter, this Court is of the view that the present one is not such a case, which requires such a recourse to be taken, for, the petitioner-company had failed, while responding, by its letter, dated 9.4.2008, to the respondent No. 1's letter, dated 4.4.2008, to not only mention the make of 'Isolating Valve', but also to point out, if it were true, that 'Butterfly Valve' and 'Isolating Valve' were one and the same thing and, similarly, when the petitioner-company failed, while offering its bid to mention or satisfy in its bidding documents, that the Mud Tank System, which it was offering, shall, though 'unitized' on trailer, be still treated as 'skid mounted' Mud Tank System. As regards the petitioner-company's contention that its Mud Tank System, which is 'unitized' on trailer is more viable, suffice it to point out that if respondent No. 1 had not sought offers in respect of Mud Tank System, which is 'unitized' on trailer, it cannot be forced to buy such a system, which the respondent No. 1 had not offered to buy, particularly, when the terms of the NIT, which were set out by the respondent No. 1, were not challenged before the petitioner-company had participated in the tender process and have not been specifically challenged even in the writ petition. In other words, the terms and conditions of the NIT, having not been challenged before the petitioner-company had participated in the tender process, there can be no escape from the conclusion that if the petitioner-company's bid does not, on the face of the materials on record, satisfy the bidding criteria, the rejection of its bid cannot be said to be arbitrary and mala fide merely because of the fact that the petitioner-company had been supplying Mud Tank System, for a long period of time, in various countries and also in India. 20. Coupled with the above, the fact, that the Mud Tank System, offered by the petitioner, is a 'unitized' Mud Tank System, is not in dispute. 21. Taking advantage of the expression, 'similar', which has been used by the respondent No. 1 in paragraph 10 of its affidavit, Mr. Choudhury submits that even if the Mud Tank System, offered by the petitioner-company, is not found to be identical, it is, at least, similar. Mr. Choudhury submits that the word 'similar' is expansive and not restrictive like the word 'same'. Support for this submission is sought to be derived by Mr. Choudhury by referring to Collector of Central Excise v. Wood Craft Products Ltd. (1995) 3 SCC 454 , and Nat Steel Equipment (P.) Ltd. v. Collector of Central Excise (1988) 1 SCC 631. 22. There can be no doubt that the word, 'similar', is expansive and not restrictive; what is, however, important to note, in this regard, is that Clause 2 of the BRC, as already quoted above, reads, "The bidder must have sold at least 2 sets of Mud Tank System in last 5 years preceding bid-closing date, Bidders are required to enclose documentary evidence in this regard. The Bidder who does not meet the experience criteria as mentioned above may also apply on the strength of collaborator/joint venture partner/joint Venture partner/Collaboration agreement with the partner shall be through a bi-partite Agreement or Memorandum of Understanding the primary bidder and the collaborator prior to bid closing date. The bi-partite agreement or MoU has to be valid until the commissioning of the unit. The bi-partite agreement or MoU has to be valid until the commissioning of the unit. Duly attested documentary evidence of pretender bi-partite Agreement or Memorandum of Understanding must be submitted along with the bid." When the petitioner-company's offer shows that its Mud Tank System is 'unitized' on trailer, its Mud Tank system cannot, in the absence of anything more, be said to be 'similar' to the Mud Tank System, which the respondent No. 1 had sought to buy. Furthermore, what cannot be ignored is that the respondent No. 1 has specifically averred, which has not been disputed by the petitioner-company, that the petitioner-company offered Mud Tank System 'unitized' on trailer: whereas the specifications were for 'skid mounted' Mud Tank System and that since the petitioner-company's offer was not for 'skid mounted' Mud Tank System, its bid has been rejected as technically non-responsive. Apart from the fact that there is considerable force in the submission, so made on behalf of respondent No. 1, this Court is not technically qualified to determine and/or comment as to whether the Mud Tank System, offered by the petitioner-company, is 'similar' to, and/or more beneficial than, the Mud Tank System, which clause No. 2 of the BRC mentions. 23. In Jagdish Mandal v. State of Orissa and Ors. (2007) 14 SCC 517, it was held that when invited to undertake exercise of judicial review on administrative action, the court's role is confined to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. The power of judicial review is aimed at checking whether a choice or a decision has been made lawfully and not to check whether the choice or decision is sound. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts, will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment, or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of the public interest, or to decide contractual disputes. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of the public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Observed the Supreme Court, in clear terms, in Jagdish Mandal (supra), thus: 33. ...Neither the High Court nor this Court can sit in appeal over such technical assessment. 24. In Tata Cellular v. Union of India (1994) 6 SCC 651 , the Apex Court, at para 94, held, "(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. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts". 25. In the case at hand, when this Court is not technically qualified to determine if the Mud Tank System, which the petitioner has offered, is one, which is covered by the technical details of the bidding documents, this Court shall refrain from adjudicating upon Such a controversy in a writ proceeding, for, recourse, in such a case, to the civil court is more appropriate inasmuch as a civil court will be able to effectively decide both disputed questions of fact as well as law. 26. Made it clear the Supreme Court, in Raunaq International (supra), by observing, thus: 16. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work can be legitimately paid in order to 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. 27. In the case at hand too, irrespective of the fact as to what the price of the Mud Tank System, which the petitioner had offered to supply, the prime question, which remains to be determined is as to whether the Mud Tank System, which the petitioner-company had offered to supply, was the one, which the global tender, in question, had sought to obtain. This determination, as already indicated above, is neither possible nor desirable in a writ proceeding, such as, the present one. 28. In the case of Master Marine Services (P.) Ltd. v. Metcalfe and Hodgkinson (P.) Ltd. (2005) 10 SCC 1 , the Apex Court has made it clear that the modern trend of judicial decision indicates judicial restraint in administrative action. In the present case too, as already indicated above, this Court does not have the expertise to correct the decision without having technical expertise. Challenge involving determination of such technical details are ideally not suited for in a writ proceeding under Article 226 and the parties shall, in such a case, take recourse to the courts of ordinary civil jurisdiction, which would be competent to determine both - the facts as well as law - to suitably compensate the party, who may suffer loss monetarily or otherwise. 29. What emerges from the above discussion is that the petitioner-company had not, admittedly, clarified to the respondent No. 1 the make of the Isolating Valve used by the petitioner-company in their Mud Tank System. The petitioner-company, until the time its bid was found to be technically non-responsive, claimed, at any stage, that the Butterfly Valve and Isolating Valve are one and the same thing. The petitioner-company, until the time its bid was found to be technically non-responsive, claimed, at any stage, that the Butterfly Valve and Isolating Valve are one and the same thing. It has, thus, become a question of fact as to whether the Isolating Valve and Butterfly Valve are one and the same thing. There is no authentic material produced before this Court to justify such a claim. As far as the question as to whether the petitioner-company's Mud Tank System, which is 'unitized' on trailer, is same as the Mud Tank System, which is skid mounted, is again a question of fact, which is in dispute. Determination of such question would require holding of roving enquiry and even taking of evidence. Coupled with all these, this Court does not have necessary technical expertise to determine the correctness or veracity of the claims made by the petitioner-company and the counter-allegations made by the respondent No. 1. Situated, thus, it becomes abundantly clear that the present writ proceeding cannot succeed. 30. In the result and for the reasons discussed above, this writ petition fails and the same shall accordingly stand dismissed. 31. No order as to costs. Petition dismissed.