A.K. Goswami, J.:— Heard Mr. T.B. Jamir, learned counsel for the petitioner. Also heard Ms. Y.Longkurner, learned State counsel appearing for respon dent Nos. 1 to 7 and Mr. Zulu Jamir, learned counsel appearing for respondent No.8. 2. The facts necessary for disposal of the writ petition as pleaded in the writ petition is that the petitioner, who is a registered Class-1 Government Contractor, in response to a Notice Inviting Tender, for short, NIT, dated 19.2.11, issued by the respondent No.3, inviting tenders from Class-1 registered Contractor of NPWD/CPWD/MES for "construction of RTO's office cum shopping complex i.e Site Development Retaining Wall at Mokokchung," submitted his tender. 4 other tenderers had also submitted tenders and by work order dated 11.4.11, issued by respondent No.3, the contract was awarded in favour of respondent No. 8. The respon dent No. 8 and the petitioner had quoted rate at the rate of 1% below SOR, 2010, but ostensibly, as the minutes of the meeting of the State Level Tender Committee held on 18.03.2011 would reveal, the respondent No. 8 was recommended as he had a better record of similar works done in Nagaland. It is stated in the writ petition that the respondent No.8 had not executed similar nature of works in Nagaland. 3. The respondent Nos. 1,2 and 3, by filing an affidavit has stated that on scrutiny of the documents submitted by the petitioner and respondent No.8, the State- Level Tender Committee found that the respondent No.8 has more experience having undertaken various construction works of similar nature with excellent track record. It is also stated that the petitioner had no experience of work similar to the work for which the NIT was issued and the details of work as submitted by the petitioner in his tender have no relevance to the experience required under Clause 8 of the NIT dated 19.2.2011. It is also pleaded that pursuant to the work order issued, the respondent No 8 had started the work much before the writ petition was filed and had also completed the first phase of the work. 4. An affidavit-in-opposition has also been filed by the respondent No.8 stating that the value of the work of similar nature done by the petitioner is below the minimum value which has been fixed by Clause 8 of the NIT and therefore, the petitioner has no locus standi to challenge the work order.
4. An affidavit-in-opposition has also been filed by the respondent No.8 stating that the value of the work of similar nature done by the petitioner is below the minimum value which has been fixed by Clause 8 of the NIT and therefore, the petitioner has no locus standi to challenge the work order. It has also been asserted that the respondent No.3 had completed the first phase of the work. 5. Mr. T.B. Jamir, learned counsel for the petitioner submits with reference to the minutes of the State Level Tender Committee held on 18.3.2011 that tender of the petitioner was valid in all respects and the respondents cannot now take the plea that the petitioner had not fulfilled the criteria as set out in Clause 8 of the NIT and therefore, the bid of the petitioner was invalid. He has also drawn the attention of the Court to the abstract of tender details prepared by respondent No.3 to show that all the 5 tenders received in connection with the work in question were valid tenders and therefore, the petitioner has locus standi to question the legality and validity of the work order issued in favour of respondent No.8. The learned counsel has urged that the admitted position is that the respondent No.8 had not executed any similar work in Nagaland and therefore, the decision of the State Level Tender Committee on 18.3.2011 to recom mend the respondent No.8 only on the ground that the respondent No.8 had a better record of similar works done in Nagaland is vitiated, warranting interference at the hands of this Court, in view of the fact that the petitioner had also quoted the same rate as the resp ondent No.8. 6. Ms. Y.Longkumer, learned State counsel submits that the respondent No.8 had not enclosed along with his tender any documents relating to execution of work in Nagaland. There was also no requirement in the NIT that the intending tenderers must have experience in executing works in Nagaland. The learned State counsel submits that the State Level Tender Committee in its meeting held on 18.3.2011, considering the experience of the respondent No. 8 in executing similar nature of works, had recommended award of work in favour of the respondent No.8 and the word "in Nagaland" is, plainly, a mistake that had crept in inadvertently and nothing more should be read because of the same.
The learned counsel submits that compared to the works done by the respondent No.8, the petitioner had not even completed similar nature of work individually in the last 3 years amounting to Rs. 172.54 lakhs as required by the NIT dated 19.2.2011. 7. Mr. Zulu Jamir, learned counsel for respondent No.8 has also endorsed the submissions of the learned State counsel. He also submits that the petitioner not having fulfilled the criteria as laid down in Clause 8 of NIT dated 19.2.2011, the writ petition is liable to be dismissed on the ground of locus standi alone. 8. The estimated cost of construction of the work in question is Rs 431.35 lakhs (Rs. 4,31,35,000/-) and time of completion is fixed at 24 months. Clause 8 of the NIT lays down the criteria for issue of tender documents in respect of eligible registered Contractors and the said clause requires that the eligible Contractors of NPWD/CPWD/MES must have completed at least one similar work individually during the last 3 years amounting to Rs. 172.54 lakhs or 40% of the tender amount. In the techno-commercial bid, the petitioner had listed the similar works undertaken by him. He had listed 2 works-one being up gradation of road and the other for construction of Tourism Watch Tower and Reception Centre at Mokokchung and Khensa, value of the work together being Rs. 1,82,00,000/-. In the counter affidavit filed by the State respondents, it has been contended that the up-gradation of road cannot be considered to be a work of similar kind as envisaged under the present NIT. Having regard to the nature of the works covered under the present NIT, up-gradation of road would not be covered under similar nature of work to be executed in terms of the present NIT. The petitioner was also awarded with the work of construction of Tourism Reception Centre at Khensa at 10% above inclusive of SOR 2005 PWD (H) and the approximate estimated cost for the civil work was Rs. 49,50,068/-. The petitioner was also awarded the work of development of Mokokcliung Watch Tower Park at par SOR 2006/60% above the SOR 1996 NPWD (R&B) and the approximate cost of the work was Rs.50,00,000/-. These 2 works were the works cited by the petitioner in the techno-commercial bid showing the value of work at Rs. 1,82,00,000/-.
49,50,068/-. The petitioner was also awarded the work of development of Mokokcliung Watch Tower Park at par SOR 2006/60% above the SOR 1996 NPWD (R&B) and the approximate cost of the work was Rs.50,00,000/-. These 2 works were the works cited by the petitioner in the techno-commercial bid showing the value of work at Rs. 1,82,00,000/-. For these 2 work, separate work orders were issued and the cumulative value of the 2 work orders, as certified by the Director, Tourism, finally comes to Rs.1,82,00,000/-. 9. The petitioner may not have strictly fulfilled the criteria as laid down in Clause 8 of the NIT as it required completion of at least one similar work amounting to Rs. 172.54 lakhs. Be that as it may, the petitioner had been issued the tender documents and the materials on record would also indicate that his tender was treated to be a valid tender and therefore, petitioner cannot be non-suited on the ground of lack of locus standi. 10. As against the work executed by the petitioner, the similar nature of work undertaken by respondent No.8 are as follows: (a) Construction of Market Complex, Kum-arghat,Tripura =; Rs.7,59,27,082.92 (b) Construction of Technical Building at Jorhat = Rs. 4,59,26,152.63 (c) Provision of Type- "A" and "B" sheds, Magazine and allied infrastructure at Narangi amounting to about Rs.19,87,30, 869.61 In addition to the above, respondent No.8 has the following ongoing projects: (i) Provision of Type "A" shed and other buildings and allied infrastructure (Phase- II) under GE, Guwahati amounting to Rs.25,24,60,520.02 (ii) Provision of OTM ACCN at Rangiya for Rs.8,54,59,541.03 (iii) Construction of 06 Nos. of Type-V quarters and 04 Nos. of: Type-IV quarters including infrastructural develop ment for Assam Rifles at Zokhawsang, Mizoram for Rs. 10,83,71,033.00 11. While exercising the power of judicial review in respect of contracts entered on behalf of the State, the Court is concerned as to whether there has been any infirmity in the decision making process. The Court can examine whether the same conforms to Article 14 of the Constitution of India. At the same time, while exercising power of judicial review, the Court does not act as a Court of Appeal but only reviews the manner in which the decision was taken.
The Court can examine whether the same conforms to Article 14 of the Constitution of India. At the same time, while exercising power of judicial review, the Court does not act as a Court of Appeal but only reviews the manner in which the decision was taken. The award of contract being essentially a commercial transaction, consideration of past expenence of tenderers and as to whether the tenderers had successfully completed similar works earlier are relevant considerations, more so when 2 tenderers quote same rates. In the instant case, the petitioner and the respondent No. 8 had quoted the same rate but the authorities of the State decided to issue the work order in favour of respondent No.8 considering the past experience of respondent No.8 in executing similar nature of works of much higher value. When 2 tenderers had submitted identical rates, no exception can be taken for preferring the respondent No.8 for award of the contract on a relevant consideration of better experience. True, the respondent No.8 have not executed any work in Nagaland though the Committee had recorded that the recommendation was in view of the experience of the execution of similar works in Nagaland; but the same is not material in view of the fact that there was no requirement that the tenderer must have experience of executing work in the State of Nagaland. Having regard to the documents submitted by respondent No.8, the insertion of the words "In Nagaland" appears to be an inadvertent error which do not, in any way, vitiate the decision making process. It is also an established principle of law that even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 of the Constitution of India with caution and circumspection and should exercise only in public interest and not merely because a fine legal point has been made out. 12. In Jagdish Mandal Vs. State of Orissa & Ors. reported in 2007 14 SCC 517, at para 22, the Apex Court had laid down as under:- "Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound".
State of Orissa & Ors. reported in 2007 14 SCC 517, at para 22, the Apex Court had laid down as under:- "Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. 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. 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 a molehill 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. Therefore, a Court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; Or Whether the process adopted or decision made is so arbitrary and irrational that the Court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/ contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action". 13. The petitioner approached this Court on 30.6.11. In terms of the work order, date of commencement of the work is to be counted from 15th day from the date of issue of the order, i.e 11.4.11, or the actual date of commencement, whichever is earlier. The pleaded version of the State respondents as well as the private respondent that the respondent No.8 had completed the first phase of the work has not been denied by the petitioner. 14. Considering the entire facts and circumstances of the case, this Court is of the opinion that the petitioner has failed to make out a case for interference with the work order dated 11.4.2011 and accordingly, the writ petition is dismissed. 15. No cost. _____________