Judgment : This petition is filed seeking a Writ of Mandamus declaring the action of respondents 1 and 2 in awarding 11 works in favour of respondents 3 to 6 pursuant to tender notification No.2/2011-12 dated 21.06.2011, as illegal and arbitrary and consequently direct the respondents to award the said 11 works to the petitioner whose price bid is lowest one. 2. Heard the learned counsel for the petitioner, learned standing counsel for respondents 1 and 2 and learned counsel appearing for respondents 3 to 6. Perused the record. 3. The petitioner is a company primarily engaged in providing comprehensive infrastructure solutions in power, telecom, defence and other sectors. According to the petitioner, they achieved major mile stones in the last three years constructing over 2900 kms transmission lines up to the voltage ranges of 765 KV and also electrified more than 32520 village in Orissa, Jharkand, Uttar Pradesh, Uttaranchal and is executing several projects in Mundra in Gujarat and Sasan in Madhya Pradesh. The petitioner also claims to have successfully executed several contracts in the various discoms in A.P., the details of which are mentioned in the affidavit filed in support of the application. The 2nd respondent invited sealed bids through E-procurement from eligible bidders for execution of 23 different works of High Voltage Distribution System (HVDS) Improvement projects involving conversion of LT networks to HVDS on turnkey basis. As per the tender notification, the bidders whose technical bids are qualified only will be considered for opening the price bid and award of subject works. The eligibility criteria prescribed by the 2nd respondent is as follows:- Proposed technical experience: “To qualify for award of the contract, each bidder should submit certificate issued by an Engineer not below the cadre of Divisional Engineer along with supporting xerox copies of agreements, along with the technical bid only for the works executed in a continuous period of 12 months during the last 5 years preceding the last date of submission of bids for i) Erection of 50% of the length of the lines in case of conversion/reconductoring. ii) 50% in case of new AB cable line proposed in the bid specification and iii) Erection and supply of not less than 50% of the quantity of DTRs proposed in the bid specification, 25% of the bid quantities should have in successful operation for 2 years. ii) 50% in case of new AB cable line proposed in the bid specification and iii) Erection and supply of not less than 50% of the quantity of DTRs proposed in the bid specification, 25% of the bid quantities should have in successful operation for 2 years. iv) The contractors who erected the departmentally supplied DTRs will also be eligible with due consideration of financial eligibility. The lines means any line from LT to 33 KV, DTRs means S-Phase or 3-Phase or any capacity.” 4. According to the petitioner, they fully satisfied the eligibility criteria as prescribed and submitted bids for 17 works out of 23 works and the respondent-Corporation, after satisfying itself about the technical/ financial qualifications of the petitioner, opened the price bids of 16 tenders out of the 17 tenders. The bids of the petitioner in respect of 16 works were declared as lowest i.e., L1. Respondents 1 and 2 awarded 7 works out of 23 works to lowest bidders that included respondent No.3 of whom 4 works are awarded valuing an amount of Rs.202 crores which is 8.5% less than the estimated cost. Respondent No.2 by their letter dated 01.12.2011 sought the petitioner to substantiate the capacity and capability to execute the works at 10% less than the estimated rate duly maintaining the required quality and construction standards. The petitioner submitted justification substantiating their capability vide letter dated 08.12.2011. Without giving any reply to the said letter, respondents 1 and 2 communicated award of 5 works valuing Rs.125.55 crores i.e., 27% of the value of works of Rs.469.82 crores for which the petitioner is eligible. Out of five, three works are of small value. Though the petitioner is technically and financially declared as qualified, the petitioner was awarded only 5 works out of 16. The balance works which were otherwise to be awarded to the petitioner to an extent of 344.27 crores as per the bid were awarded in favour of other agencies. They have not met the required qualification criteria and the price bids quoted by them are higher than those quoted by the petitioner. On coming to know of the same, the petitioner wrote a letter dated 29.12.2011 to respondents 1 and 2 to look into the matter once again and award balance 11 works to the petitioner. There was no response from respondents 1 and 2. On coming to know of the same, the petitioner wrote a letter dated 29.12.2011 to respondents 1 and 2 to look into the matter once again and award balance 11 works to the petitioner. There was no response from respondents 1 and 2. The respondents are seeking to justify their action by relying on Clause 30.5 of the tender conditions under which the right of allotment of number of packages/works of the contractor is reserved with the employer. Clause 30.3 mandates that in case the bidder is successful in more than one package, the packages will be allotted equivalent to twice the maximum turn over achieved in any one of the last five years or four times the times the liquid assets and sanctioned credit facilities whichever is less. In violation of the said condition, respondents 1 and 2 awarded works in favour of respondents 3 to 6. The petitioner’s maximum turnover achieved in the year 2009-2010 is Rs.1,043/-crores and the total lead bank appraised credit facilities of the petitioner is 1990 crores. The petitioner is, therefore, eligible for award of all the 16 works whose estimated value is Rs.524.06 crores and the price bid of the petitioner which is lowest was 469.82 crores. The 3rd respondent is not fulfilling the eligibility criteria. Respondents 1 and 2 awarded 9 works whose total value is Rs.416.23 crores. The respondent-Corporation being the instrumentality of the State is not entitled to award the works at its will like a private individual and its action must be in conformity with the standards prescribed by it under the notification. 5. Respondents 1 and 2 filed counter stating that sealed bids were invited through E-procurement from eligible bidders for erection of 33/11 kv substation and connected lines on turnkey basis and conversion of existing LT networks into HVDS on turnkey basis in the six districts of SPDCL vide tender notice dated 06.06.2011/ 21.06.2011 and the tenders were called in 23 packages and the petitioner offered bids in 17 works and in the process of evaluation petitioner’s bids were identified as L1 in respect of 16 works. Respondents 1 and 2 would contend that as per tender condition No.30, the employer has right to accept any bid and to reject any or all bids. The petitioner was awarded 5 bids vide LAO dated 26.12.2011. Respondents 1 and 2 would contend that as per tender condition No.30, the employer has right to accept any bid and to reject any or all bids. The petitioner was awarded 5 bids vide LAO dated 26.12.2011. Out of remaining works, 5 packages were awarded to 3rd respondent, 2 packages to 4th respondent, 1 package to 5th respondent, 1 package to 6th respondent and 1 package to M/s B.Srinivasa Rao Power Constructions Pvt., Limited, Nalgonda and 1 package to M/s Sanghamitra Constructions Private Limited, Kadapa. As per the terms and conditions of the tender, the petitioner has to submit performance bank guarantee on or before 17.01.2012, but till now the petitioner has not submitted the same. Respondents 1 and 2 would further contend that finalization of tenders was done duly observing the guidelines of tender notification dated 21.06.2011. It is further contended by respondents that previously the petitioner was awarded HVDS works but the petitioner has not adhered to the time schedule and the details of the said delays are mentioned in the counter-affidavit. The tenders received from the bidders have been evaluated duly observing clauses 4.6, 4.9, 30.1, 30.2 and 30.5. Mere satisfaction of eligibility criteria does not entitle the writ petitioner in awarding all contracts in respect of 16 works wherein it was declared as L1. In terms of clauses 30.2 sand 30.5 and keeping in view the track record of the company, the petitioner was awarded 5 works. Four works which were awarded to the 3rd respondent M/s Shirdi Sai Electricals Ltd., Kadapa were in respect of the bids for which the petitioner has not offered the bid. Therefore, the petitioner cannot have any grievance in that regard. The works were awarded to various bidders duly taking into consideration their proven performance, quality of works, financial capability, manufacturing capacity of equipments, credibility and professional management. The petitioner’s past performance was poor in APSPDCL and not up to the mark. The petitioner’s performance in APNPDCL was also reported to be not satisfactory and it is reported that the petitioner is still executing HVDS works even after five years, though the agreement period is only one year. Various instances of the poor quality of the work done by the petitioner and the details of delayed execution of the works resulting in revenue loss and heavy financial expenditure have been detailed in the counter-affidavit filed by respondents 1 and 2. Various instances of the poor quality of the work done by the petitioner and the details of delayed execution of the works resulting in revenue loss and heavy financial expenditure have been detailed in the counter-affidavit filed by respondents 1 and 2. According to the respondents, HVDS is a very important project in the present circumstances on power sector in order to reduce distribution losses and to provide better quality of power supply and respondents 1 and 2 have not taken chances again in view of past experience. The respondents would further contend that the right to allotment of work vested with the employer only and the tenderers will not have choice of allotment of the works. The works were allotted to other capable contractors at L1 quoted by the petitioner only and thus there is no financial loss to the company. Respondent No.3 fulfilled all the eligibility criteria for awarding the works worth Rs.450 crores and it was awarded works to the tune of only Rs.416.23 crores. In fact, the 3rd respondent has executed HVDS works valuing Rs.261.74 crores in the respondent-company alone and the work was satisfactory and in conformity with the agreement. Respondent No.3 is also having a manufacturing establishment at Kadapa within the territorial jurisdiction of the respondent-company. Eleven packages have been awarded to six other bidders to ensure that the scheme contemplated by the respondent is executed in a time bound manner so that the public interest and the consumers’ interest do not suffer. 6. Respondent No.3 filed a counter contending that the writ petition is not maintainable and the jurisdiction of this Court cannot be invoked for resolution of the contractual disputes and the petitioner was not eliminated. They were, in fact, awarded 5 packages. Clause 30 of the tender makes it very clear that a lowest tenderer is not entitled for award of a package. The contention of the petitioner that he is the lowest tenderer in all the 16 packages and he is entitled for award of the same, is untenable. The employer has every reason to give up a lowest tenderer and award the contract to another tenderer, for valid reasons. The employer has, in fact, applied uniform price and awarded the works to other tenderers also at the lowest rate quoted by the petitioner. The employer has every reason to give up a lowest tenderer and award the contract to another tenderer, for valid reasons. The employer has, in fact, applied uniform price and awarded the works to other tenderers also at the lowest rate quoted by the petitioner. The award of contract to different tenderers at the same rate adopting the lowest rate does not offend public interest in any manner. Respondent No.3 has already entered into agreement on 10.01.2012 and work order was also issued in his favour. 7. Respondent No.5 filed a counter contending that his bid was accepted and he was awarded the work at the same rate quoted by the writ petitioner for valid reasons and as per Clause 30 of the tender, the employer has every right to accept any bids or to reject any or all other bids. 8. Respondent No.6 filed a counter contending that they have been executing the works of the electricity board since 1993 and works were completed successfully and respondent No.6 was the lowest tenderer in one package and the work was awarded at the lowest rate quoted by the petitioner applying uniform price. The 6th respondent has submitted the bank guarantee on 13.01.2012 and entered into an agreement on 18.01.2012 even prior to filing of the writ petition and the work is being executed. The 6th respondent is having maximum turn over of 65.07 crores in 2010-2011 and unused credit limits of 24.56 crores and liquid assets of Rs.23.88 crores, totaling to Rs.48.44 crores and he is eligible to packages worth twice the turn over i.e., Rs.130.14 crores (65.07 x 2). The value of the total works allotted to this respondent was only Rs.45.21 crores. 9. The petitioner filed a reply to the counter filed by respondents 1 and 2 stating that they have submitted the bank guarantees within time and reiterating their contentions raised in the writ affidavit and contending that Respondent No.3’s net worth as on 16.07.2010 is only Rs.17,70,41,122/-and the provisional balance sheet is Rs.68,97,88,390/-, whereas the net worth and the liquid assets and sanctioned credit facilities of the petitioner is Rs.1043 crores and 1990 crores respectively. The petitioner would, therefore, contend that they are eligible for award of all packages whereas as Respondent No.3 is not eligible for award of works to an extent of Rs.469.32 crores. 10. The petitioner would, therefore, contend that they are eligible for award of all packages whereas as Respondent No.3 is not eligible for award of works to an extent of Rs.469.32 crores. 10. The 3rd respondent filed an additional counter reiterating that there has been no violation of Clause 30.3 of the tender conditions and the turn over of the 3rd respondent was Rs.128,50,25,000/-for 2006-2007, Rs.60,59,92,557/-for 2007-2008, Rs.118,60,05,234/-for 2008-2009, Rs.221,86,10,815/-for 2009-2010 and Rs.225,28,07,127/-for 2010-2011 (provisional). When the turnover of the 3rd respondent in any of the last five years is taken into account, he is entitled to award of such number of packages not exceeding twice the maximum turnover. Respondent No.3 is entitled for award of packages costing not more than double the amount of Rs.225,28,07,127/-i.e., 2010-2011 i.e., roughly about Rs.450 crores. The works awarded to Respondent No.3 is now only Rs.416.23 crores which is within the turnover limit under Clause 30.3. If the liquid assets and sanctioned credit limits criteria is taken into consideration, it aggregates to Rs.143,32,85,238/-and four times thereof as per Clause 30.3 comes to Rs.573,31,40,972/-. The turnover criteria being lesser than the liquid assets is taken into consideration under Clause 30.3 and, therefore, award of packages worth Rs.416.23 crores is in compliance with the said clause. The contention of the petitioner that the net worth of the tenderer is to be taken into account, is not tenable, as the same is not borne out by the terms and conditions of the tender notification. The 3rd respondent further reiterated that they have been executing the HVDS work with the 1st respondent since several years and completed similar works successfully in the past. 11. The petitioner filed a further reply to the additional counter of respondents 1 to 3 contending that as per the eligibility criteria prescribed at Condition No.5.3 (d), the bidder should have achieved annual turn over in construction work of 50% of the bid price in any one of the last five years and as such for award of work to an extent of Rs.416.23 crores, the bidder should have executed construction work to an extent of Rs.213.12 crores and insofar as the 3rd respondent is concerned, the total value of engineering construction work over the last five years is only Rs.345.93 crores and they have not shown yearly breakup for the said turnover of Rs.345.93 crores. Respondents 1 to 3 seeks to rely on the financial turn over for the last five years which cannot be the basis for award of the works. The petitioner further contended in the reply that the 3rd respondent also executed works with inordinate delays as per the experience certificate uploaded by the 3rd respondent. He has taken two to three years to execute the works as against the agreement period of one year. The petitioner further contended that respondents 1 and 2 have not followed the ratio fixed in Clause 5.1 of the Purchase Manual of the A.P. Transco which was adopted by the respondent-Company in case of distribution of quantities among two or more sources. 12. Respondent No.4 filed a counter stating that Conditions 30.1 to 30.5 deals with employer’s right to accept any bid and to reject any or all bids and having taken the performance of the successful bidders into consideration and keeping in view the time frame and as works have to be completed within two years to avoid power crisis, respondents 1 and 2 have awarded different packages to different bidders but, however, at uniform rate i.e., lowest rate quoted by the petitioner. The 4th respondent further stated that he is having experience of erection of power lines and having annual turn over of Rs.140 crores out of which the turn over for 2010-2011 was more than Rs.113 crores and thus qualified for double the quantities. Respondent No.4 is having liquid assets and credit facilities as on 28.12.2011 at Rs.153.28 crrores. The 4th respondent was awarded two packages of Rs.28.25 crores and Rs.17.47 crores. The 4th respondent further stated that the projects involve more labour and cannot work during agricultural season and during power supply time. Hence, the usual practice is to spread the work among all the participants matching to L1 prices of bidders who have capacity to execute all the projects within the specified period and thus the employer has to distribute to other bidders at L1 prices or further negotiated prices. 13. At the time of hearing, it is stated on behalf of the petitioner that the relief is being pressed as against R-1 to R-3 only, but not respondents 4 to 6. 14. 13. At the time of hearing, it is stated on behalf of the petitioner that the relief is being pressed as against R-1 to R-3 only, but not respondents 4 to 6. 14. The first and foremost contention of respondents 1 to 3 is that the writ petition is not maintainable, as the petitioner is seeking contractual obligations and espousing a personal grievance over not awarding of the contract in respect of 11 works out of 16, which has nothing to do with the public interest. The petitioner, on the other hand, would contend that as the 1st respondent, being instrumentality of the State, not having followed the eligibility criteria prescribed by them in the matter of awarding contracts in favour of the 3rd respondent in respect of 5 works, is entitled to question the same, especially when the petitioner happened to be the lowest tenderer and fulfilled all the eligibility criteria for award of the said 11 contracts. 15. It is not disputed that respondents 1 and 2 have issued notification calling for tenders for erection of 33/11 KV substations and connected lines on turnkey basis and conversion of existing LT networks into HVDS on turnkey basis in six districts under the jurisdiction of APSPDCL. The tenders were called in 23 packages. The petitioner offered to bid for 17 works out of 23 and he was found to have quoted the lowest and was declared L1 in respect of 16 works. The petitioner was, however, awarded 5 works out of 11 works and among the remaining works, 5 packages were awarded to the 3rd respondent, two packages to the 4th respondent, one package to the 5th respondent, one package to the 6th respondent and one each to two other companies, who are not parties to the present writ petition. The grievance of the petitioner is that the 3rd respondent does not fulfill the eligibility criteria prescribed in Clause 30.3 of the tender conditions and, therefore, the 3rd respondent ought not to have been awarded any work at all. The grievance of the petitioner is that the 3rd respondent does not fulfill the eligibility criteria prescribed in Clause 30.3 of the tender conditions and, therefore, the 3rd respondent ought not to have been awarded any work at all. Respondents 1 to 3, while contending that the 3rd respondent has fulfilled the prescribed eligibility criteria and there has been no violation of Clause 30.3 of the tender conditions, would seek to justify the action on the ground that under Clauses 30.1 and 2, the employer has the right to accept or reject any bid and to cancel the bidding process and reject all the bids and the employer also reserves the right to award not more than one package in case the bidder is successful in more than one package due to time constraint for overall project. Respondents 1 to 3 would further contend that for ventilating personal grievance over non-award of the contracts in respect of remaining 11 packages, the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 16. It is well settled that the scope of judicial scrutiny in the matter of policy decisions taken by the State or its instrumentalities is very limited. Before an administrative policy decision can be interfered with by way of judicial review, it must be shown that the same is vitiated as being arbitrary or discriminatory or mala fide. The Court cannot substitute the policy decision by suggesting an alternative nor can it go into the question of evaluation of relative merits or demerits of the existing policy and the proposed new policy. The Court cannot strike down the terms and conditions of a tender on the ground that there could have been better or wiser terms and conditions. In a catena of decisions, the parameters defining the scope of interference by the Courts in the name of judicial review have been well settled. 17. In DIRECTORATE OF EDUCATION V. EDUCOMP DATAMATICS LIMITED ( 2004 (4) SCC 19 ), the Apex Court held as follows: “This principle was again re-stated by this Court in Monarch Infrastructure (P) Ltd. V. Commissioner, Ulhasnagar Municipal Corporation and others ( 2000(5) SCC 287 ). 17. In DIRECTORATE OF EDUCATION V. EDUCOMP DATAMATICS LIMITED ( 2004 (4) SCC 19 ), the Apex Court held as follows: “This principle was again re-stated by this Court in Monarch Infrastructure (P) Ltd. V. Commissioner, Ulhasnagar Municipal Corporation and others ( 2000(5) SCC 287 ). It was held that the terms and conditions in the tender are prescribed by the Government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. It is not for the Courts to say whether the conditions prescribed in the tender under considerations were better than the one prescribed in the earlier tender invitations. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Courts can interfere only if the policy decision is arbitrary, discriminatory or malafide.” The state and its instrumentalities must have free hand in setting the terms of tender and the Court would not subject the terms of tender to judicial scrutiny as the same is in the realm of a contract. 18. In TATA CELLULAR v. UNION OF INDIA ( 1994 (6) SCC 651 ) the Apex Court dealing with the scope of judicial review coupled with judicial restraint in government contracts held as follows:-“Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the order covers the scope of the court’s ability to quash an administrative decision on its merits. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the order covers the scope of the court’s ability to quash an administrative decision on its merits. These restrains bear the hallmarks of judicial control over administrative action.” xxxx xxxx xxxx xxxx The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. committed an error of law 3. committed a breach of the rules of natural justice 4. reached a decision which no reasonable tribunal would have reached or 5. abused its powers” 19. In AIR INDIA LIMITED V. COCHIN INTERNATIONAL AIRPORT LIMITED (2000 (2) SCC 167), the Apex Court while dealing with a similar issue held as follows:- "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, 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. 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 principles laid down in the above decisions would make it clear that the terms and conditions of tender are not open to judicial scrutiny and the same is in the realm of a contract and the State or its instrumentalities would be free in setting the terms and conditions of the tender, which according to them, are in the public interest and in the absence of any arbitrariness or discrimination or mala fides, the Courts would not interfere with the administrative policy decisions. It is also well settled that judicial review of an administrative decision is limited to examining whether the decision making process is vitiated by any illegality or procedural irregularity or perversity and the Court cannot sit in appeal over the decision in the absence of any such vitiating factors. The scope of judicial review in the matters involving challenge to the tender conditions is, thus, very limited. 20. In a decision in JAGADISH MANDAL V. STATE OF ORISSA (2007 (14) SCC 517), the Apex Court held as follows:- “Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether 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. 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 public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/ procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold.” 21. In RAUNAQ INTERNATIONAL LTD. V. I.V.R. CONSTRUCTION LTD., ( 1999 (1) SCC 492 ), the Apex Court held as follows:- “9. 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 of paramount importance are commercial considerations. These would be: (1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work -thus involving larger outlays or public money and delaying the availability of services, facilities or goods, e.g. A delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. 11. When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, die court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.” 22. In ASSN. OF REGISTRATION PLATES v. UNION OF INDIA ( 2005 (1) SCC 679 ), the Apex Court held as follows: “43………Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. Al that he can claim is that in competing for the contract, he should not be unfairly treated as discriminated, to the detriment of public interest.” 23. In B.S.N.JOSHI & SONS LTD., V. NAIR COAL SERVICES LTD ( 2006 (11) SCC 548 ), the Apex Court held as follows:- “56.It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge thereof; the same ordinarily being within its domain, court’s interference in such matter should be minimal. The High Court’s jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record.” From the principles laid down by the Apex Court in the above decisions, it can be seen that evaluating tenders and awarding contracts are essentially commercial functions and the principles of equity and natural justice stay at a distance and if the decision relating to award of contract is bona fide and it is in public interest, Courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or prejudice to a tenderer is made out. It can be further seen from the above decision that power of judicial review cannot be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. In order to bring the matter within the ambit and scope of judicial review, the petitioner has to establish that the process adopted or decision made by the authorities was mala fide or intended to favour someone or the process adopted or decision made is so arbitrary and irrational which no responsible authority could have reached and whether public interest is affected. 24. In the present case, the petitioner seeks to impugn the action of respondents 1 and 2 in awarding 5 contracts in favour of the 3rd respondent on the ground that there has been violation of Clause 30.3 of the tender conditions, which states as follows:- “In case the bidder is successful in more than one package, the packages will be allotted equivalent to twice the maximum turnover achieved in any one of the last five years or four times the liquid assets and sanctioned credit facilities whichever is less will be considered.” 25. According to the petitioner, the 3rd respondent was awarded contracts worth Rs.416.23 crores, though he does not fulfill the eligibility criteria under Clause 30.3. Respondents 1 and 2 have stated in their counters that the 3rd respondent fulfilled the eligibility criteria for awarding of contracts worth Rs.450 crores, but he was awarded works worth Rs.416.23 crores only. The petitioner stated in their reply affidavit that the net worth of the 3rd respondent as per the record submitted by them to the Registrar of Companies was only Rs.17,70,41,122/-and the provisional balance sheet showed only Rs.68,97,88,390/-whereas the net worth and liquid assets and sanctioned credit facilities of the petitioner is Rs.1043 crores for the last five years and 1990 crores respectively and, therefore, the petitioner is fully eligible for award of the works. The 3rd respondent in their additional counter has set out the details of the turn over for the financial years from 2006-2011 and stated that as per Clause 30.3 if the turn over of any of the last five years is taken into account, he would be entitled for award of packages not exceeding twice the maximum turn over for the year 2010-2011. The turn over of 3rd respondent was stated to be Rs.225,28,07,127/-and, therefore, they are entitled for award of packages costing up to twice the said amount at about Rs.450 crores. The 3rd respondent was awarded works worth only Rs.416.23 crores which is less than the prescribed limit in Clause 30.3. According to the 3rd respondent, the liquid assets and sanctioned credit facilities would aggregate to Rs.143,32,85,238/-and four times thereof as per Clause 30.3 would come to Rs.573,31,40,972/ -, but as per Clause 30.3, the lesser of the two criteria i.e., maximum turn over was taken into consideration and works worth Rs.416.23 crores were accorded which is in compliance with Clause 30.3. As rightly contended by the learned counsel for respondents 1 to 3, Clause 30.3 does not make any reference to net worth of the tenderer and it only speaks of maximum turnover achieved in any one of the last five years or four times the liquid assets and sanctioned credit facilities whichever is less. Thus, while evaluating the bids and awarding the contracts in terms of Clause 30.3 what is to be taken into consideration is only a maximum turnover or the liquid assets and sanctioned credit facilities whichever is less, but not the net worth of the tenderer. The contention of the petitioner that the net worth of the 3rd respondent is only Rs.17,70,41,122/-and the provisional balance sheet shows Rs.68,97,88,390/-as on 16.07.2010 whereas the net worth and liquid assets and sanctioned credit facilities of the petitioner is much higher being Rs.1043 crores and Rs.1990 crores, the petitioner ought to have been awarded the contracts, is untenable. What is relevant for the purpose of Clause 30.3 is only a maximum turnover and the liquid assets and sanctioned credit facilities whichever is less and the net worth of the bidder has no bearing or relevance in the context of Clause 30.3. 26. The material on record shows that the maximum turn over of the 3rd respondent in the year 2010-2011 was Rs.225 crores and, therefore, he was awardedcontracts worth double the said amount i.e., up to Rs.450/-crores and he was awarded packages worth Rs.416.23 crores which is within the prescribed limit. It cannot, therefore, be said that there has been any violation of or non-compliance with the eligibility criteria prescribed under Clause 30.3. 27. It cannot, therefore, be said that there has been any violation of or non-compliance with the eligibility criteria prescribed under Clause 30.3. 27. In the further reply filed by them, the petitioners have stated that as per the eligibility criteria prescribed under Condition 5(1) (d) the bidder should have achieved an annual turn over in construction work of 50% of the bid price in any one of the last five years and the 3rd respondent has not satisfied the same, as the 3rd respondent is not shown to have executed construction work to an extent of Rs.213.12 crores. Clause 5.1 of the Invitation for Bids while prescribing the eligibility and qualification of intended bidders states that to qualify for award of the contract, each bidder should submit certificate issued by an Engineer not below the cadre of Divisional Engineer, for the works executed in a continuous period of 12 months during the last 5 years in respect of certificate specified works and Clause (d) states that the bidder should have achieved an annual turn over in construction work of 50% of the bid price in any one of the last five years. Clause 5 deals with eligibility and qualification of intending bidders and the requirement prescribed is that the bidder should have achieved annual turn over in the construction work up to 50% of the bid price. As rightly contended by the learned counsel for respondents 1 to 3, the said condition prescribing the eligibility criteria for award of each contract has nothing to do with Clause 30.3 which deals with award of more than one package and which prescribes maximum limit when the bidder is successful in more than one package. Clause 30.3 prescribes a maximum limit that the packages to be awarded to the single bidder shall be equivalent to twice the maximum turn over achieved in any one of the last five years and four times the liquid assets or sanctioned credit facilities, whichever is less. The eligibility criteria prescribed in Clause 5 of the Invitation for Bids and the maximum limit prescribed under Clause 30.3 of the instructions to bidders are two different concepts in different contexts and operate in different fields. The eligibility criteria prescribed in Clause 5 of the Invitation for Bids and the maximum limit prescribed under Clause 30.3 of the instructions to bidders are two different concepts in different contexts and operate in different fields. While considering the question as to whether the award of five packages to the 3rd respondent is in compliance with Clause 30.3, recourse to the eligibility criteria prescribed in clause 5(1) (d) of the Invitation for Bids is irrelevant and uncalled for. It is significant to notethat Clause 30.3 speaks of only maximum turn over achieved in any one of the last five years and does not specify that such maximum turn over should be in respect of construction work. In the absence of such specification in Clause 30.3, the intent and purport of the expression “maximum turnover” occurring in the said clause cannot be given restricted or narrow meaning by confining the same to construction turnover. It is not disputed and the petitioner himself filed certificate of turn over of the 3rd respondent for the years 2006-2007 to 2010-2011 wherein the maximum turn over for 2010-2011 is shown as Rs.225,28,07,127/-. When once it is shown by the 3rd respondent that the total value of the packages awarded to him did not exceed twice the amount of maximum turnover during any of the last five years, it cannot be said that there has been non-compliance with Clause 30.3. 28. The petitioner next contended that as per Clause 5.51 (I) of the Purchase Manual of A.P. Transco which is adopted by the respondent-Corporation, in case of distribution of quantities among two or more sources, the prescribed ratio has to be adopted, but the same has not been followed by respondents 1 and 2 while awarding contracts in favour of Respondent No.3. Clause 5.51(I) of the Purchase Manual states that when there are two identical L1 offers, ratio should be 50:50 and when both L1 and L2 are industries in the private sector, ratio should be 70:30 and when L2 is an undertaking or joint venture of Government of A.P/Central Government, it should be 60:40 regarding the percentage distribution between L1 and L2. It is to be noted that the clause obtaining in the draft purchase manual does not form part of the tender conditions and, therefore, recourse to the said clause which deals with distribution of quantities in the matter of purchase from different sources, is totally irrelevant. 29. Clause 30.1 states that notwithstanding Clause 29, which prescribes the award criteria, the employer reserves the right to accept or reject any bid and to cancel the bidding process and rejecting all bids at any time prior to award of the contract. Clause 30.2 states that employer reserves the right to award not more than one package in case the bidder is successful in more than one package, due to time constraint for overall project. Clause 30.5 states that the right of allotment of number of packages/works to the contractors is reserved with the employer. It is not as though the petitioner was eliminated altogether. Admittedly, he was awarded five packages out of 16. The fact that he quoted the lowest bid in respect of the other 11 packages also does not ipso facto entitle him for award of those packages as well. Based on the assessment of the past performance and the time constraints involved in completion of the projects, respondents 1 and 2 in exercise of the right reserved under the above clauses are empowered to award the contracts to other bidders also. It cannot be said that such award of packages to others has resulted in any financial loss to the 1st respondent-company. The packages were allotted at a uniform price i.e., at the same lowest rate quoted by the petitioner. Thus, there is no element of any public interest involved in the matter and there is no loss to the public exchequer. On the other hand, it is the contention of respondents 1 and 2 that the award of different packages to different bidders at the uniform price would further the public interest, as the same ensures speedy execution of the works, which are required to be completed in a time bound manner. The material on record does not establish existence of any arbitrariness or unreasonableness or bias or mala fides in awarding different packages to different bidders and it is also not shown that public interest is affected in any manner thereby, so as to call for interference under Article 226 of the Constitution of India. The material on record does not establish existence of any arbitrariness or unreasonableness or bias or mala fides in awarding different packages to different bidders and it is also not shown that public interest is affected in any manner thereby, so as to call for interference under Article 226 of the Constitution of India. There are no merits in the writ petition. 30. In the result, the writ petition is dismissed. Interim direction granted on 20.01.2012 stands vacated. Miscellaneous petitions, if any, stand closed. There shall be no order as to costs.