JUDGMENT : ” The appellant had called for tenders for civil works at the drilling site at Demowal gaon in the northern bank area in Sivasagar district. Around fourteen tenders were submitted. One tender was disqualified. Private respondent submitted two tenders for two different works and he is the lowest bidder. For one work he quoted at 16.05 per cent. less than the estimate and for the other work he quoted at 10 per cent. less than the estimate. The tender of the respondent 3 is accepted and work-order is given. The private respondent whose tender was not accepted filed a writ petition[WP(C) 2425/2014]. 2. Around ten tenderers had quoted same rate which is less than ten per cent. of the estimate. The appellant in order to avoid the risk of favouritism conducted a lottery draw in respect of the ten tenderers. The second respondent won the lottery, therefore his tender is accepted and work-order is granted. 3. The contesting respondent aggrieved by the rejection of his tender filed the writ petition. It is his contention that the tender condition 15.7 discloses that if any tenderer gives an unworkable rate the appellant had to call for rate analysis from such lowest tenderer to ascertain whether his rates are viable. In the instant case it is said that the tender condition 15.7 is not complied by the appellant. 4. The learned single Judge agreed with the contention of the contesting respondent allowed the writ petition and directed the appellant to comply the requirement of tender condition 15.7 by giving opportunity to the contesting respondent to explain his rate analysis to prove the viability. The appellant aggrieved by the said order filed this appeal. 5. The tender condition 15.5 to 15.7 is extracted hereunder. ' 15.5 The bids shall be evaluated in accordance with the Essential Qualifying Requirement(EQR)/Bid Evaluation Criteria (BEC) as enclosed with Bid Documents. Bidder must furnish all relevant details along with documentary proofs for qualification of his bid failing which his Bid is liable to be rejected. 15.6 As required under EQR/BEC, bidder must submitt certificate I, II & III on his letter head as per pro forma given at Appendix-A. 15.7 Bidders are expected to quote the competitive and workable rates in relation to prevailing market rates. In the event of submission of low unworkable rates, the bidder shall have to submit rate analysis, if so asked for. In the event of submission of low unworkable rates, the bidder shall have to submit rate analysis, if so asked for. In the event of unsatisfactory explanations, the Corporation shall be entitled to reject the lowest tender of tenders without assigning any reason' . 6. It is the contention of the appellant that the bidder has no right to insist that he should be called to submit rate analysis. It is the discretion of the appellant, if so desires, to call for rate analysis to find out whether the rates are viable or whether such lowest tender can be preferred. The appellant, after the submission of tenders, in its educated assessment has found that any tender rate within the range of less than ten per cent. of the estimate to be workable. There were ten competing tenderers with similar rates. In order to avoid the risk of favouritism a lottery draw was held and the second respondent won the lottery. 7. It is submitted that there is no mala fide in selecting the tender on the part of the appellant. In the course of hearing on earlier occasion it was submitted that work-order is issued to the second respondent: he has substantially commenced the work. In order to find out the extent and nature of work executed by the second respondent this Court directed the Deputy Commissioner, Sivasagar to visit the site and give a report regarding the extent of work done. 8. The Deputy Commissioner pursuant to the direction visited the site and gave his report in the following manner. ' DCDG/DE Demowal Gaon : In my visit it was seen that some activities like jungle cutting, was claimed by ONGC cleared area was observed and perhaps the contractor carried out the works few days back. In this regard the Executive Engineer, PWD Building was directed to submit technical report and he has submitted his findings and the same is attached herewith for favour of your kind perusal and appraisal of the Hon ” ble Court. Hence the extent of clearance cannot be estimated. Yet it can be said that if at all jungle cutting was done it would not be in more than two to three bighas as already a functional oil well is co-located. Hence cost estimation is not possible. Hence the extent of clearance cannot be estimated. Yet it can be said that if at all jungle cutting was done it would not be in more than two to three bighas as already a functional oil well is co-located. Hence cost estimation is not possible. Work of Drill Site GKHM in Geleky area: The said site was also visited by the undersigned along with the above persons and it was observed the post work verification by site without accurate pre-work survey is a serious handicap in actual assessment of work volume and cost thereof. Yet rough estimation is made of work supposedly undertaken by the parties reportedly engaged by ONGC. The report submitted by Executive Engineer, PWD, Building, Sivasagar is attached herewith for favour of kind perusal and appraisal of Hon ” ble Court. The estimated value of work done is Rs. 5,51,332/- as per PWD(B) and Rs. 8,79,017/- as per DRDA. The wide variation is also indicated of lack of accurate data of work done anew and of earlier work done as part of adjacent oil well located nearby' . 9. It is the contention of the appellant that the work-order is issued and the work is already commenced by the second respondent. At this stage it would be inequitable to disturb the contract and also it would be detriment to the interest of the appellant if the contract works are not expeditiously executed. 10. Sri P. D. Nair, the counsel for the contesting respondent, has strenuously submitted that rates quoted by the contesting respondent cannot be ex facie said to be unworkable, laying a list of eleven works where the tender rates were ranging between 45% to 10.50%. Their tenders are accepted and work orders given. 11. Appellant has not adhered to the tender conditions. The appellant being a Government-owned corporation ought to have functioned with rectitude and transparency. The conduct of the appellant in rejecting the tender of contesting respondent without opportunity as required under condition 15.7 is arbitrary. Therefore the order of the learned single Judge is sound and proper and the appeal is to be dismissed, the counsel for the contesting respondent submits. 12. The conduct of the appellant in rejecting the tender of contesting respondent without opportunity as required under condition 15.7 is arbitrary. Therefore the order of the learned single Judge is sound and proper and the appeal is to be dismissed, the counsel for the contesting respondent submits. 12. Upon thorough consideration of the facts and circumstances and interpretation of Clause 15.7 it discloses that Clause 15.7 does not invest a right in the lowest tenderer that in every case he should be asked to explain the rate analysis to show that his rates are viable. The condition 15.7 gives a discretion to the appellant: if so desire, they can ask for rate analysis; otherwise they can form an opinion that the rate is unworkable and reject the tender. 13. The appellant has adopted a norm for consideration of tenders which are in the range of below ten per cent. and not beyond ten per cent. of the estimate, which, in their view, such contractors would ensure both quality and efficiency. A transaction is essentially one of a contract, and the appellant should have the free leverage to assess the quality and efficiency ~ although not arbitrarily ~ of the contractors who had submitted tender. In this case the method adopted is the educated estimate on the part of the appellant to prefer only the tenders which are less than 10 per cent. of the estimate cannot be considered as arbitrary. 14. The contention that on earlier occasions for civil works tenders had been granted where the rate was below forty-five per cent. of the estimate is not a ground to suspect and impute mala fide on the part of the tenderer. There is no substantial material available with the Court to assess under what circumstances such lowest tenders were accepted and work-order given. Merely because on earlier occasions the lowest tenders ranging between around 10.50 per cent. to 45.33 per cent. had been granted work order in the above cases is not a ground in itself to infer any mala fide in this case. There is absolutely no right vested in the contesting respondent to insist that in every case the appellant should give an opportunity to explain the rate analysis to the lowest tenderer. to 45.33 per cent. had been granted work order in the above cases is not a ground in itself to infer any mala fide in this case. There is absolutely no right vested in the contesting respondent to insist that in every case the appellant should give an opportunity to explain the rate analysis to the lowest tenderer. The contention that the contracts have to be expeditiously executed, otherwise it would be to the financial detriment to the appellant is also a well-founded argument. In that view of the matter the appeal is allowed. Appeal allowed.