JUDGMENT : Heard Dr. A.K. Saraf, learned senior counsel for the petitioner. Also heard Mr. U.K. Nair, learned counsel and Mr. A. Sarma, learned counsel appearing for the respondent Nos. 1, 2, 3, 5 and 6 and Mr. R. Mehra, learned senior counsel appearing for the respondent No. 4. None appears for the Union of India, respondent No. 7. 2. Oil India Limited (hereinafter referred to as ‘OIL’) invited International Competitive Bids (ICB) dated 16.3.2015 from competent and experienced contractors through Oil e-Procurement site for Engineering, Procurement and Construction of Secondary Tank Farm (STF) at Madhuban. Closing date and time for submission of bid was fixed on 5.5.2015 at 11.00 hours (IST). As per the bidding document, last date of receipt of pre-bid queries was fixed up to 15.30 hours (IST) of 6.4.2015 and pre-bid conference was fixed on 7.4.2015 at 10.00 hours (IST). Invitation for bid (IFB) was in two-bid system, namely, technical bid and price bid. 3. The petitioner participated in the tender process. 10 (ten) other tenderers also participated in the process. It appears that bid closing date was subsequently revised to 6.8.2015. Technical bids of four tenderers including that of the petitioner and the respondent No. 4 were found to have qualified and accordingly, their price bids were opened on 19.11.2015. The bid submitted by the petitioner was Rs. 4,32,99,97,000/- and the bid quoted by the respondent No. 4 was Rs. 4,39,14,42,834/-. As the bid of the petitioner was lowest, the petitioner was expecting a formal letter of acceptance for the contract in question. However, a letter dated 9.12.2015 (Annexure-II) was issued by the respondent No. 3 to the petitioner raising a query about an amount of Rs. 9,10,00,000/-, quoted by the petitioner on account of service tax. It was indicated in the said letter that according to the calculation of the respondent No. 1, the amount actually worked out to be Rs. 23,73,83,832/- and thus, there was a discrepancy between the service tax amount calculated by OIL as per the rate considered by the petitioner and the service tax amount indicated in the Schedule of Price by the petitioner. It was further indicated that the bid of the petitioner would be accordingly evaluated. 23,73,83,832/- and thus, there was a discrepancy between the service tax amount calculated by OIL as per the rate considered by the petitioner and the service tax amount indicated in the Schedule of Price by the petitioner. It was further indicated that the bid of the petitioner would be accordingly evaluated. The petitioner was asked to confirm its acceptance to the same not later than 11.12.2015 and was also informed that in case no communication was received from the petitioner before the stipulated date, it would be presumed that the petitioner had accepted the position. 4. The petitioner submitted a detailed reply dated 11.12.2015 (Annexure-III). It is stated, amongst others, that the basis for arriving at the service tax amount of Rs. 9,10,00,000/- is not on percentage calculation method and it is the net liability considered on the project after availing all the input credits by it based on applicable rules. It is also indicated in the said letter that the service tax rate of 5.6% composite considered by it at the end of the Schedule of Price is indicative only and for the purpose of statutory variation that arises during the course of execution of contract which is applicable for Public Limited Company. It was highlighted that the price evaluation should be based on the EPC price quoted in Serial No. 5 of Form SPO only and that the petitioner was the lowest bidder with total EPC price of Rs. 4,32,99,97,000/-. 5. The petitioner did not receive any communication on the reply submitted but received a copy of a caveat filed by the respondent No. 1 on 14.12.2015, wherein it was indicated that service tax amount as calculated by OIL in respect of the petitioner which was communicated by letter dated 9.12.2015 works out to be Rs. 23,73,83,832/- and based on the said calculation, offer price of the petitioner becomes second lowest. On receipt of the said caveat, the petitioner sent a communication through e-mail dated 21.12.2015 to the Chairman and Managing Director of OIL, respondent No. 2, clarifying the issue of Service Tax and requesting him to look into the matter. 23,73,83,832/- and based on the said calculation, offer price of the petitioner becomes second lowest. On receipt of the said caveat, the petitioner sent a communication through e-mail dated 21.12.2015 to the Chairman and Managing Director of OIL, respondent No. 2, clarifying the issue of Service Tax and requesting him to look into the matter. As no response was received and as the petitioner was construed to be the L2 bidder as disclosed in the caveat, the petitioner approached this Court by filing this application under Article 226 of the Constitution of India praying for setting aside the impugned decision of the respondent authorities in adjudging the petitioner as the L2 bidder and in proposing to award the contract to respondent No. 4 and also for issuing a direction to the respondents to settle the tender in question in favour of the petitioner. 6. The writ petition was filed on 4.1.2016 and moved on 6.1.2016. After hearing the learned counsel appearing for the petitioner as well as OIL, a notice of motion was issued returnable in four weeks and an interim order was also passed. The interim order is as follows: “In the interim, having regard to the tender terms, while finalizing contract, the total lump sum price (EPC) quoted by the petitioner i.e., Rs. 4,32,99,97,000/- should be taken as the petitioner’s bid amount, without adding any further amount to the said bid, on account of service tax. While passing this interim order, the Court apart from the tender conditions had also taken into account the submission made by the petitioner’s lawyer that they will not claim any higher amount towards service tax than Rs. 9.10 crores assessed by them under this head, as part of the EPC amount.“ 7. EPC stands for Engineering, Procurement and Construction. 8. On 18.1.2016, respondent No. 4 filed an application for vacation/modification/variation of the ex-parte interim order dated 6.1.2016 and the said application was registered as I.A. No. 125/2016. 9. The respondent No. 4 filed an additional affidavit to bring on record subsequent facts and for appropriate direction. In the said affidavit, it is stated that when I.A. 125/2016 was listed on 25.1.2016, on the prayer of the learned counsel for the writ petitioner, two weeks’ time was granted to file response to the interim application, also providing that appropriate response may be filed by OIL. In the said affidavit, it is stated that when I.A. 125/2016 was listed on 25.1.2016, on the prayer of the learned counsel for the writ petitioner, two weeks’ time was granted to file response to the interim application, also providing that appropriate response may be filed by OIL. It is averred that during pendency of the said I.A. No. 125/2016, treating the interim order dated 6.1.2016 as a final judgment, OIL was taking steps to award the contract to the petitioner. 10. IA No. 125/2016 was taken up for consideration on 8.2.2016. Because of paucity of time, the hearing could not be completed, and as such the case was fixed on 9.2.2016. When the matter was taken up on 9.2.2016, the learned counsel appearing for the parties submitted that the Court may also consider disposing of the writ petition instead of taking up the application for vacating the interim order and considering the request made by the parties, the case was taken up for disposal at the admission stage. 11. It is to be noted that on 9.2.2016 an affidavit was filed on behalf of OIL. Learned counsel for OIL also produced a Note for the Board, being Board Note No. 3171 dated 30.12.2015 signed by General Manager (Commercial), General Manager (F&A), Executive Director (P. Project) and Resident Chief Executive, Minutes of Local Management Committee (LMC) meeting held on 6.12.2016 and a copy of the FAX Message dated 6.2.2016 from Group General Manager (C&P) for Chairman and Managing Director [GGM(C&P)] on the subjects of CBC Note No. TCD/CBC/035/2015-16 dated 21.1.2016, interim order dated 6.1.2016 passed by this Court in WP(C) No. 24/2016 and Head Legal’s letter OIL/Legal/Fabtech dated 27.1.2016. 12. Dr. Saraf has submitted that the Schedule of Price (Form SPO) in the tender documents required the bidders to separately quote the prices for supplies and services. Dr. Saraf has drawn the attention of the Court to Clause 21.7, 21.8, 21.9, 22.4 and 24.2 of Instruction to Bidders, Clause 3.1, 3.3, 4.0(ii) of Bid Rejection Criteria (BRC)/Bid Evaluation Criteria (BEC), Clause t of 1.0 providing definition of special terms, Clause 14.0(E)(a)(b), 14.0(F)(b)(c)(d)(e), 38.1.1(i)(ii)(iii), 38.1.3, 38.1.4(i) of the Special Conditions of Contract, Schedule of Price and Payment as well as Clause 1, 2, 4, 5 and 7(iv) of Preamble to Schedule of Price forming part of Schedule of Price and Payment. 13. Basic and fundamental contention advanced by Dr. 13. Basic and fundamental contention advanced by Dr. Saraf is that total lump sum quoted price of Engineering, Procurement and Construction (EPC) inclusive of all taxes, duties including prevailing service tax, insurance, EPF and ESI is to be calculated as per the Schedule of Price (Form SPO) by adding up (1) total cost of supplies/materials (lump sum) under Serial No. 1 of the heading ‘I’ (Supplies), (2) total cost for Engineering inclusive of applicable taxes, duties except service tax (lump sum) under Serial No. 2 of the heading ‘II’ (Services), (3) total cost of services for entire work under Serial No. 3 of the heading ‘II’ (Services) and (4) total amount of service tax payable extra for the works/services under the Project under Serial No. 4 of the heading ‘II’ (Services). The total of the same (1+2+3+4) is to be quoted under Serial No. 5 and Clause 4 of the Preamble to Schedule of Price makes it abundantly clear that the price evaluation shall be based on the EPC price quoted in Serial No. 5 of Form SPO only and therefore, OIL could not have loaded certain amount beyond what is quoted by the petitioner as service tax in Serial No. 4 to render the bid of the petitioner L2. He has submitted that it is for the contractor to asses and to ascertain applicability of taxes, duties, levies etc. applicable under the contract. OIL will not have any liability whatsoever, on account of taxes, duties, levies etc. which are based on the bidder’s wrong assessment/interpretation of applicability of such taxes, duties and levies etc. There is also a duty cast on the bidder to pass on to OIL the benefit of any tax exemption, concession, rebate or any other incentives available when the contractors or its sub-contractors/vendors are performing their obligation under a contract. Dr. Saraf has submitted that petitioner had not taken any exception to any Clause of bid document and therefore, the OIL did not have any discretion to load or reject the offer and therefore, total contract value as given by the petitioner could not have been altered. There was no arithmetical error in the service tax quoted by the petitioner as indicated in Clause 22.4 of the Instruction to Bidders. There was no arithmetical error in the service tax quoted by the petitioner as indicated in Clause 22.4 of the Instruction to Bidders. In Pre-bid meeting, it was observed that no CENVAT credit for excise duty and service tax is applicable for OIL, but that does not mean that no CENVAT credit is available to the petitioner. The learned senior counsel submits that the letter dated 9.12.2015 intimating the petitioner that service tax amount in respect of the bid of the petitioner actually works out to be Rs. 23,73,83,832/-is wholly unauthorized and contrary to tender conditions. The petitioner had mentioned the amount of service tax keeping in view various rebates, benefits etc., available to the petitioner and it correctly quoted the amount of Rs. 9,10,00,000/-, he submits. He has also submitted that when the terms of the tender are clear with no ambiguity, the learned Single Judge rightly passed the interim order to the effect that while finalizing the contract, the total lump sum price (EPC) should be taken as the petitioner’s bid amount, without adding any further amount to the said bid on account of service tax. It is submitted by him that petitioner in terms of the tender submitted by it is the lowest tenderer (L1) and therefore, the respondent authorities be directed to settle the contract in favour of the petitioner by setting aside OIL’s decision that the bid of the petitioner is the second lowest (L2). 14. Mr. Mehra, learned senior counsel appearing for the respondent No. 4 has submitted that the writ petition is premature as no final decision had been taken with regard to the award of contract. He has submitted that if the service tax amount, as correctly assessed by OIL in respect of the petitioner at 23,73,83,832/- is taken, the respondent No. 4 would be the lowest tenderer (L1). In respect of Serial Nos. 1, 2 and 3, i.e., supplies, engineering and total cost of service, respectively, of the Schedule of Price (Form SPO), the bid of the respondent No. 4 is lower than the bid of the petitioner and the service tax amount quoted by the respondent No. 4 is 23,28,79,544/-. He has submitted that because of the interim order which, on the face of it, is in the nature of a final order, the respondent OIL is contemplating to award the contract in favour of the petitioner. He has submitted that because of the interim order which, on the face of it, is in the nature of a final order, the respondent OIL is contemplating to award the contract in favour of the petitioner. According to him, the petitioner had erroneously calculated service tax applicable for the scope of work as contemplated in the tender and respondent No. 1 having found a material deviation in the manner in which the service tax component had been calculated by the petitioner, had informed the petitioner that its calculation of service tax was incorrect. The learned senior counsel has placed reliance on Clause 4 of the Bid Rejection Criteria (BRC)/Bid Evaluation Criteria (BEC) with emphasis on 4.0 (ii) thereof, Clause 38.1.1 (i)(ii)(iii), 38.1.4(iii) of the Special Conditions of Contract, the note appearing at serial No. 4 of Schedule of Price and Payment (Form SPO), Clause 4 of the Preamble to Schedule of Price under the Schedule of Price and Payment, Clause 8.5(b) and (d), 10, 19, 22.3, 22.4, 24.2 of the Instructions to Bidders, Clause 8.10 of General Conditions of Contract, Clause 14.0(F) of Special Conditions of Contract, Pre-bid query on Excise Duty and the response of OIL at Page 47 of I.A. No. 125/2016 and Corrigendum No. 5 dated 13.7.2015 at Page 55 of I.A. No. 125/2016. He has pointed out that decision to load on service tax quoted by the petitioner was taken by the Local Management Committee (LMC) and the issue is required to be debated upon by higher authorities and as such no finality is attached to the decision as conveyed in the letter dated 9.12.2015. He has contended that as no final decision had been taken by the respondent OIL as to whether under the terms of the Contract, additional amount in respect of service tax can be loaded, this Court will not adjudicate upon the issue and leave the matter to be considered and decided by the higher authorities by making it clear that such decision is to be taken without being influenced by the ex-parte interim order passed by this Court. Mr. Mehra has placed reliance upon the judgment of the Apex Court in the case of Jagdish Mandal vs. State of Orissa and others, reported in (2007) 14 SCC 517. 15. Mr. Mr. Mehra has placed reliance upon the judgment of the Apex Court in the case of Jagdish Mandal vs. State of Orissa and others, reported in (2007) 14 SCC 517. 15. Mr. U.K. Nair, learned counsel for OIL has submitted that letter dated 9.12.2015 was issued by the LMC and placing reliance on Paragraph 6 of the affidavit filed, he submits that OIL had not reached any final decision at the Board Level and the matter was still under process of evaluation when the writ petition came to be filed. It is submitted by him that there are two other levels in the decision making process apart from LMS, namely, the Corporate Business Committee (CBC) and the Board of Directors (BOD). He has submitted that in view of the interim order dated 6.1.2016, CBC had advised LMC to review its decision. He has submitted that, accordingly, the LMC reviewed the decision on 19.1.2016 as advised by CBC. The learned counsel submits that the LMC had taken a different view earlier with regard to the loading of service tax in respect of the petitioner and now because of the interim order, had reviewed the aforesaid stand. He has submitted that in the facts and circumstances of the case, it may be appropriate for this Court to direct OIL to again independently consider the issue relating to service tax amount quoted by the petitioner on the basis of relevant clauses of the tender document and thereafter to take steps for finalization of the contract in accordance with law. 16. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 17. In the affidavit of OIL, in paragraph 6, it is stated as follows: “6. That pursuant to such development and also the basis of such cross correspondences on record, the matter was placed before the competent authorities of Oil India Ltd. for assessment and decision thereof. It is pertinent to mention herein that the Oil India Ltd. had not reached any final decision at this Board Level and the matter was still under the process of evaluation, that the present writ petition came to be filed by the petitioner on presumptive apprehension of they been deprived of a favourable consideration in the present tender settlement.” 18. It is pertinent to mention herein that the Oil India Ltd. had not reached any final decision at this Board Level and the matter was still under the process of evaluation, that the present writ petition came to be filed by the petitioner on presumptive apprehension of they been deprived of a favourable consideration in the present tender settlement.” 18. In the caveat filed by OIL, a categorical statement was made in paragraph 4 that the petitioner’s offered price had become L2, giving an impression that a final decision had been taken by the appropriate authority. 19. Neither in the affidavit nor in the caveat, it is indicated that the reply dated 11.12.2015 (Annexure-3) given by the petitioner to the letter dated 09.12.2015 (Annexure-2) had been considered at any level. 20. From the minutes of the LMC meeting held on 06.02.2016, which was produced by Mr. Nair, it appears that on 19.01.2016, decision was taken by LMC to prefer a writ appeal against the interim order dated 06.01.2016 passed by this Court. It also appears that in view of the interim order dated 06.01.2016 as well as the view of Head – Legal, CBC in its meeting held on 01.02.2016 advised LMC to review its decision and, accordingly, LMC reviewed its decision of 19.01.2016 and decided as under: “8.0 Review by LMC: With the above background, LMC reviewed its decision of 19.01.2016 as advised by CBC and has now decided as under: (i) OIL shall abide by Gauhati High Court’s interim order dated 06.01.2016. No counter affidavit/writ appeal shall be filed in the High Court. (ii) To process Board Note seeking approval for award of contract in favour of M/s Fabtech Project & Engineers Ltd., Pune, LOA to M/s Fabtech shall be issued after carrying out price negotiation to obtain the discount offered by Fabtech earlier. The negotiated contract price will be intimated to the Board through an appraisal note. Supplementary budget sanction shall also be sought from Board.” 21. In the affidavit filed on 09.02.2016, affidavit of which was sworn on the very same date, the aforesaid developments that had taken place on 06.02.2016 were not placed on record. It appears that LMC had reviewed its decision primarily on the basis of the interim order passed by this Court and it was because of that Mr. In the affidavit filed on 09.02.2016, affidavit of which was sworn on the very same date, the aforesaid developments that had taken place on 06.02.2016 were not placed on record. It appears that LMC had reviewed its decision primarily on the basis of the interim order passed by this Court and it was because of that Mr. Nair had submitted that in the facts and circumstances of the case, OIL should again independently consider the issue relating to service tax amount quoted by the petitioner on the basis of relevant clauses of the tender document. 22. It is clear from the materials on record that at the time when the writ petitioner had approached this Court, it was only the LMC which had taken a view that the service tax amount quoted by the petitioner was not correct and that, actually ,with the calculations as made by it, the bid of the petitioner would be L2. It is also not in dispute that the decision of the LMC has to be considered by CBC and the BOD. It may be that LMC will prepare a note for consideration of higher authorities but this Court will not understand that the CBC and BOD will accept a note without any independent application of mind. It is expected that higher authorities will also independently consider the matter in its entirety with reference to tender documents. 23. In Jagdish Mandal (supra), in paragraph 22, it is stated thus: “22. ………………. 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. 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.” 24. 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.” 24. Apart from LMC, at the first instance, the other two authorities, namely, CBC and the BOD had not considered the matter at all. Thus, no decision on the issue of service tax as well as allotment of the work in favour of any party was taken by the BOD. The reply submitted by the petitioner (Annexure-3) had also not been considered on merits, but primarily banking on the interim order, LMC had decided to seek approval for award of contract in favour of the petitioner. 25. Even though there was a ring of finality in the interim order passed, it must be remembered that in the writ petition notice was issued and the issue as to whether prayer made by the writ petitioner to set aside the decision of the respondent authorities in adjudging the petitioner as L2, was still a live issue. Therefore, the interim order has to be understood in that perspective. 26. In view of the above, I am of the considered opinion that it will be appropriate for the authorities of the OIL, beginning from LMC to consider the issue afresh taking note of the relevant provisions of the tender documents and the response of the petitioner dated 11.12.2015 (Annexure-3) to the letter dated 09.12.2015 (Annexure-2 to the writ petition). 27. The Court had referred to various provisions of the tender documents only because they were cited by the learned Senior counsel for the petitioner and the respondent No. 4. It is made clear that this Court has not expressed any final opinion and it will be for the authorities of the OIL to take a decision in the matter in accordance with law bearing in mind the tender conditions. 28. Writ petition is disposed of with the aforesaid observations and directions. No cost. 29. Papers produced by Mr. Nair be kept in the records of this case.