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2016 DIGILAW 190 (MAN)

D. Pukeho Mao v. State of Manipur

2016-11-15

N.KOTISWAR SINGH

body2016
JUDGMENT : N. Kotiswar Singh, J. Heard Mr. I. Lalitkumar, Sr. Advocate, Ms. Ayangleima, learned counsel for the petitioners, Mr. K.Rabei, learned counsel for the Respondent no.1, Mr. M. Hemchandra Singh, learned counsel for the Respondent no.2 and 3 as well as Mr. Th. Khagemba, learned counsel for the Respondent no.4. WP(C) No. 732 of 2015 2. In this writ petition, WP(C) No. 732 of 2015, the petitioner has challenged the participation of the respondent No. 4 in the tender process and awarding him the tender work in terms of the NIT No. 5/16/2014-MSRRDA/E-Tender/Ph-X(RT) dated 27.12.2014 for execution of the work under the Pradhan Mantri Gram Sadak Yojana (PMGSY) Phase-X RETENDER in respect of Tadubi Block, Senapati District for the road from Senapati to Oklong Pt-II under Package No. MN0696(A) on the ground that the respondent No. 4 is not eligible to take part in the bid and his bid is also unrealistically low and cannot be said to be responsive. 3. The petitioner states that in terms of the aforesaid NIT dated 27.12.2014, the petitioner and other bidders including the respondent No. 4 submitted their bids online. The eligibility conditions as mentioned in the said NIT include that Special Class Contractors who are applying must be registered with PWD, Government of Manipur and should not have incomplete works under PMGSY for which work orders were issued prior to March, 2011. 4. It is the contention of the petitioner that the respondent No. 4 who participated in the said tender process under the name and style of Ms. Nganingkhui is not a Special Class Contractor registered with the PWD, Government of Manipur. According to the petitioner, as subsequently ascertained from the office of the PWD, there is no Contractor/Firm in the name of Ms. Nganingkhui though there is a contractor with the name V.S. Nganingkhui of Khongbal Tangkhul Village, Sadar Hills, Senapati District who has been registered as a Special Class Contractor with the Department vide order dated 21.11.2002. Ms. Ayangleima, learned counsel for the petitioner submits that though there is no such Special Class Contractor under the name and style Ms. Nganingkhui, the respondent No. 4 participated in the said bid process under the said name. It has been also stated that the PAN Number i.e. AFPPN3984C which was furnished by the bidder belongs to V.S. Nganingkhui. Ms. Ayangleima, learned counsel for the petitioner submits that though there is no such Special Class Contractor under the name and style Ms. Nganingkhui, the respondent No. 4 participated in the said bid process under the said name. It has been also stated that the PAN Number i.e. AFPPN3984C which was furnished by the bidder belongs to V.S. Nganingkhui. Thus, the respondent No. 4 participated in the bid under the name and style Ms. Nganingkhui which is not registered with the PWD and hence not eligible. 5. Ms. Ayangleima submits that the fact that there is no Company in the name and style of Ms. Nganingkhui registered with the PWD which is also clear from the documents annexed by the respondents in their affidavit-in-opposition. In the affidavit-in opposition filed by the respondent Nos. 2 and 3 it had been stated that V.S. Nganingkhui had submitted an application along with necessary affidavit to the authorities stating that the name of V.S. Nganingkhui was wrongly recorded as Ms. Nganingkhui at the time of online application in connection with e-Procurement system in PMGSY and accordingly, he requested the authorities for accepting the bid submitted in the name of Ms. Nganingkhui. The respondent Nos. 2 and 3 in their affidavit-in-opposition have stated that in view of the representation submitted by the respondent no. 4 on 4.12.2014 the Tender Committee in its meeting held on 8.12.2014 discussed the issue of error of the online registration of contractor's name through Digital Signature Certificate (DSC) raised by the respondent No. 4, and after consideration, the Tender Committee took the following resolutions as quoted below :- "Resolution No.1 Correction of name V.S. Nganingkhui instead of Miss/Ms. Nganingkhui after registration of his Digital Signature Certificate (DSC) cannot be done except a fresh Digital Signature Certificate (DSC) is registered in the correct name. Resolution No. 2 The documents submitted online by the bidder is found genuine as his name is Mr. V.S. Nganingkhui but at the time of online registration of DSC, through bona fide mistake his name has been wrongly recorded as Miss/Ms. Nganingkhui instead of Mr. V.S. Nganingkhui, therefore, his case can be considered." The aforesaid resolutions of the Tender Committee clearly show that there is no such firm in the name of Ms. Nganingkhui which was registered with the PWD. 6. It has been further submitted by Ms. Nganingkhui instead of Mr. V.S. Nganingkhui, therefore, his case can be considered." The aforesaid resolutions of the Tender Committee clearly show that there is no such firm in the name of Ms. Nganingkhui which was registered with the PWD. 6. It has been further submitted by Ms. Ayangleima, learned counsel for the petitioner that even if the respondent No. 4 had realised the mistake of the wrong entry of the name of the bidder, the respondent No. 4 could have made necessary correction at the time of submitting the bid form. However, instead of furnishing the correct name V.S. Nganingkhui as claimed by him he opted to submit the bid in the name of Ms Nganingkhui. Therefore, the bid of the respondent No. 4 ought to have been rejected for submitting wrong information. 7. Ms. Ayangleima, learned counsel for the petitioner further submitted that even though the respondent No. 4 came to know that his name was wrongly recorded as Ms Nganingkhui at the time of online registration in the year 2013, he did not take any steps for rectification and revocation of the wrong DSC. Ms. Ayangleima, submits that since the bid NIT was issued in December, 2014, there was ample time for the respondent No.4 to make necessary correction and rectification of the DSC to enable him to take part in the NIT which the respondent No.4 did not do. It was accordingly submitted that as the respondent No.4, V.S. Nganingkhui had not disclosed his true identity, it amounts to submitting misleading or incorrect information, and as such, in terms of Clause 4.7 of the SBD, the bid of the respondent No.4 ought to have been rejected. 8. Ms. Ayangleima also submits that the so called Tender Committee meeting held on 8.12.2014 is not valid in as much as the said Tender Committee was attended only by the Chief Engineer as otherwise the names of the members of the Tender Committee ought to have been reflected in the proceedings of the Tender Committee which held its meeting on 8th December, 2014, a copy of which has been annexed as Annexure-C/4 to the affidavit-in-opposition filed by the respondent Nos. 2 and 3. Hence, the said resolutions of the said Tender Committee are not valid. 9. Ms. Ayangleima further submits that Technical Bids of the bidders were opened on 25.02.2015 and Financial Bids, on 17.04.2015. 2 and 3. Hence, the said resolutions of the said Tender Committee are not valid. 9. Ms. Ayangleima further submits that Technical Bids of the bidders were opened on 25.02.2015 and Financial Bids, on 17.04.2015. However, after the Technical Bids and Financial Bids were opened as mentioned above, the respondent authorities purportedly in pursuance of the letter issued by the Ministry of Rural Development, Government of India on 22.07.2015, laid down the permissible range of bid amounts as mentioned in para 8 of the affidavit-in-opposition of the respondent Nos. 2 and 3. It has been stated that pursuant to the letter dated 22.07.2015, the State respondents set a device as Stage-I Work and Stage-II/Up-gradation Work, to discourage unreasonable low rates. In respect of Stage-I, the bid amount within -30% (minus thirty per cent) of the engineer's estimated rates would be considered as reasonable and realistically workable and the bid amount below -30% (minus thirty per cent) for the Stage-I work will be rejected. Similarly, in case of Stage-II/Up gradation, the bid amount below -25% (minus twenty-five per cent) of the engineer's estimated rates would be considered as reasonable and realistically workable and the bid amount below -25% (minus twenty-five per cent) for the Stage-II/Up-gradation work will be rejected. 10. Ms. Ayangleima submits that such criteria laying down the permissible limit ought to have been made known to all the bidders and ought to have formed part of the SBD so that all the prospective bidders would know the range to which they can bid their respective prices. She submits that para 10 of the SBD provides for amendment of bidding documents. Para 10.1 provides that before the deadline for submission of bids, the Employer may modify the bidding documents by issuing addenda. Para 10.2 further provides that any corrigendum thus issued shall be part of the bidding documents and shall be communicated in writing by registered post or by cable to all purchasers of the bidding documents. Prospective bidders shall acknowledge receipt of each corrigendum by cable/email to the Employer. Thus, if they wanted to bring any amendment to the clause of the SBD, the same ought to have been informed to all the bidders. In the present case, as the same has not been done but was done after the opening of the Technical Bid and Financial Bid, the said procedure adopted is impermissible in law. Ms. Thus, if they wanted to bring any amendment to the clause of the SBD, the same ought to have been informed to all the bidders. In the present case, as the same has not been done but was done after the opening of the Technical Bid and Financial Bid, the said procedure adopted is impermissible in law. Ms. Ayangleima further submits that in fact, the said range has been set by the authorities to accommodate the highly unreasonable rate quoted by the respondent No. 4. The respondent No. 4 quoted far below the scheduled rate which was already uploaded and made known to all the bidders. Normally and ordinarily, the bid of the respondent No. 4 ought to have been rejected as being far below the scheduled rate. However, because of the aforesaid arbitrary fixation of the permissible limits, that too after opening of the Technical and Financial Bids, the bid of the respondent No. 4 has been illegally accepted by giving unduly favour to him. 11. Ms. Ayangleima also submits that a close scrutiny of the aforesaid letter dated 22.07.2015 issued by the Ministry of Rural Development, Government of India would indicate that there should not be any fixation of minimum ceiling so as to avoid multiple bids of the same value. However, in order to avoid any unreasonably/unrealistically low and unworkable rate, the MSRRDA was authorised to devise a formula for calculating and imposing on relevant bidders an Additional Performance Security in proportion to the price bid quoted by the bidder, to discourage such unreasonably low rate. Therefore, according to her, the letter does not authorise fixation of any minimum rate. However, contrary to the purpose and intent of the said letter, the respondent authorities fixed the minimum permissible limit as mentioned above, in order to accommodate the respondent No.4. 12. The other substantive ground of challenge is that the present tender floated by the authorities is based on item rate tender. In other words, the bidders are to bid item wise and accordingly, authorities are supposed to evaluate item wise. It has been shown that the estimated rates in respect of these various items had been shown by the authorities or uploaded before, and hence it was not permissible to quote below the said estimated item wise rates, which has been done by the respondent No.4. It has been shown that the estimated rates in respect of these various items had been shown by the authorities or uploaded before, and hence it was not permissible to quote below the said estimated item wise rates, which has been done by the respondent No.4. The rates quoted by respondent No.4 in all these items are below the estimated item wise rates which is not permissible. Ms. Ayangleima, learned counsel for the petitioner submits that the estimated costs had been fixed by the authorities by taking into consideration the minimum rate workable in every item of work keeping into consideration the various legal obligations as an employer or contractor. Ms. Ayangleima submits that the contractors are to fulfil the legal obligations arising out of the various labour laws as mentioned in Appendix to para No.1 General Conditions of Contract as provided in the SBD which also includes minimum wages payment for services etc. The authorities had fixed the estimated costs by taking into consideration the various requirements of labour laws and as such, if any person quotes below the estimated costs, he compromises with the legal obligations and also on the quality of work, and in fact, Clause 25(2) of the SBD clearly mentioned that the bids must be substantially responsive, which means that there cannot be deviation in any substantial way relating to the scope, quality or purpose of the works and also the employer's right or bidder's obligation under the contract. Hence, it has been submitted that bidding a price below the estimated cost by the respondent No.4 cannot be said to be a substantially responsive bid and on that ground, the bid of the respondent No.4 ought to have been rejected. 13. It has been also submitted that after the bid has been uploaded by the tenderer, there ought to have been bid evaluation of all the bids of the bidders as required under clause 25 of ITB and 27(1) of the SBD. Ms. Ayangleima contends that in the present case, the same has not been undertaken by the authorities and if the same had been undertaken, the result of such comparative evaluation ought to have been uploaded and intimated to the bidders. Ms. Ayangleima submits that till date, no such uploading of comparative evaluation has been done nor was the petitioner informed of such comparative evaluation. 14. Ms. Ayangleima submits that till date, no such uploading of comparative evaluation has been done nor was the petitioner informed of such comparative evaluation. 14. It has been submitted that the selection of the respondent No.4 as the successful bidder was never informed to the petitioner nor uploaded in the official website. There is also no information at all as to whether the bid of the petitioner had been rejected or not. Thus, it has been submitted that the authorities have acted in a clandestine manner to award the contract to the respondent No.4. 15. In response, Mr. Hemchandra, learned counsel for the Manipur State Rural Roads Development Agency (MSRRDA) has submitted that the authorities had verified the identity of the Respondent no. 4 on the basis of the documents and affidavit filed by the Respondent no.4 which were found to be genuine and accordingly, the Tender Committee after considering the materials on record accepted the tender of the Respondent no.4. It has been submitted that since the aforesaid Ms Nganingkhui and V.S. Nganingkhui are the same and one person, there was no reason to reject the bid of the Respondent no.4. 16. As regards, the low rate minimum rate fixed by the authorities, Mr. Hemochandra referred to the averments made in the para No.8 of the affidavit-in-opposition of the official Respondents that the present work relates to Stage-II/Up-gradation of a project. As this work relates to up gradation of the existing roads, it had been decided that the bids amount upto -25% of the engineer's estimated rates would be considered as reasonable and realistically workable and any such bid amount which is more than-25% for Stage-II/Up gradation work will be rejected. In the present case, the bid amount of the respondent No.4 was found to be within the limit of-25% of the engineer's estimated rates and as such, as the bid of the Respondent no.4 was the lowest and also found to be workable was accepted. Mr. Hemchandra further submits that as far as the bid evaluation is concerned, the same is undertaken by a software used by the department based on the data/figures/bid rates furnished by the bidders. The software after necessary analysis generates the result indicating as to the lowest or otherwise of the bid. Mr. Hemchandra further submits that as far as the bid evaluation is concerned, the same is undertaken by a software used by the department based on the data/figures/bid rates furnished by the bidders. The software after necessary analysis generates the result indicating as to the lowest or otherwise of the bid. It has been submitted that such process undertaken by the computer based software rules out any human intervention at the time of bid evaluation. He submits that the bid rates submitted by the tenderers were fed to the computer and by application of the software generated, it was found that the bid of the respondent No.4 was the lowest and workable and hence, responsive. 17. Mr. Hemochandra further submits that as provided under Clause 27.3 of the SBD, if the bid of the successful bidder is seriously imbalanced in relation to the Engineers' estimate of the cost of the work to be performed under the contract, the Employer may require the bidder to produce detailed price analysis for any or all items of the bill of quantities to demonstrate internal inconsistency of those prices. It further provides that after evaluation of the price analysis, the Employer may require that the amount of the performance security be increased at the expense of the successful bidder to a level sufficient to protect the employer against financial loss in the event of default of the successful bidder under the contract. The amount of the increased performance security shall be at the sole discretion of the employer, final, biding and conclusive on the bidder. 18. It has been submitted that after the financial bid was opened and as the bid of the Respondent no.4 was found to be as low as (- 14.89%) below the estimated cost, the Respondent no.4 was asked to justify the rate quoted vide letter dated 7.5.2015 and he submitted the rate justification on 15.5.2015. The Tender Evaluation Committee consisting of the Chief Engineer, the Additional Chief Engineer, Superintending Engineer-I, Superintending Engineer- II, Financial Controller and the IT Nodal Officer (MSRRDA) subsequently on consideration of the tender documents along with the justification furnished by the private respondent no. 4 found the same to be internally consistent and the Respondent no.4 had also shown his willingness to execute the work at the quoted rate without compromising the quality of work. 19. Mr. 4 found the same to be internally consistent and the Respondent no.4 had also shown his willingness to execute the work at the quoted rate without compromising the quality of work. 19. Mr. Hemachandra submits that the mode of calculation adopted by the Tender Evaluation Committee was based on several methods/analysis viz., (i) Labour Rate Analysis (ii) Machinery Rate Analysis (iii) Contract Profit. It has been stated that after applying all the relevant parameters and taking into consideration that the Respondent no.4 owned and possessed the required machineries, and after deducting the services charge, overhead charge, running charge, etc the rate quoted by the respondent no.4 was found to be workable. 20. It has been further stated that the Tender Evaluation Committee while recommending the award of the contract to the Respondent no. 4 directed the respondent no. 4 to deposit the Normal Performance Security of 2.5% of the Contract price as Bank Guarantee of Rs. 18,14,000.00, Additional Performance Security for Construction of Rs.44,38,000.00 and another Additional Performance Security for maintenance of Rs.6,44,000.00 to protect the State/employer against financial loss in the event of default of the successful bidder. It has been stated that acceptance of the bid of the respondent no.4 was issued on 19.8.2015 after the respondent no.4 submitted necessary security deposit and the work order was issued on 29.8.2015. 21. Mr. Th. Khagemba, learned counsel for the respondent no.4 submits that the petition is liable to be rejected at the threshold as the petitioner has not approached this Court with clean hands. Mr. Khagemba, in order to substantiate his submission, states that prior to the filing of this writ petition, the petitioner had earlier filed a writ petition being WP(C) No. 703 of 2015 in which the petitioner had correctly recorded the respondent No. 4 as V.S. Nganingkhui. However, the petitioner withdrew the said petition and filed the present petition depicting the Respondent no. 4 as Ms. Nganingkhui by trying to make out the case that Ms Nganingkhui and V.S. Nganingkhui are two different persons and also obtained a favourable interim order by representing that Ms. Nganingkhui is different from V.S. Nganingkhui though the petitioner knew very well that Ms Nganingkhui is none other than V.S. Nganingkhui. 22. 4 as Ms. Nganingkhui by trying to make out the case that Ms Nganingkhui and V.S. Nganingkhui are two different persons and also obtained a favourable interim order by representing that Ms. Nganingkhui is different from V.S. Nganingkhui though the petitioner knew very well that Ms Nganingkhui is none other than V.S. Nganingkhui. 22. That apart, it has been stated that in para 22.7 of the SBD that any of the bidders could submit a complaint within 5 days of the publication of the result of the evaluation of Part-1 of the Bids which shall be considered for resolution before opening of Part-II of the bid. Similarly, there is a provision under para No. 9.1 of the SBD in which it has been stated that any prospective bidder requiring any clarification of the bidding documents may notify the Employer in writing or by cable. It has been submitted that if the petitioner thought that the participation of the bid by the respondent No.4 in the name and style of Ms Nganingkhui was wrong, the petitioner could have raised the objection under the aforesaid provisions of the SBD. However, since the petitioner did not raise any complaint/objection, he cannot do it now at this stage as he shall be deemed to have waived such right to raise such objection. 23. Mr. Khagemba also submits that the evaluation of the tenders was done entirely by the software developed by the authorities in which human intervention is not possible. Mr. Khagemba also submits that such process undertaken by the computer by use of software was in the nature of expert opinion and unless the same is found to be arbitrary or in violation of any statutory provision, it ought not be interfered by this Court in exercise of jurisdiction under Article 226 of the Constitution. 24. As regards the allegation that the rate quoted by the respondent No. 4 is unreasonably low, he submits that since the bid of the respondent No. 4 had been found to be substantially responsive and was also found to be the lowest, award of contract in his favour cannot be faulted with. 25. Mr. Khagemba also submits that para 30.1 of SBD itself provides that employer reserves the right to accept or reject any Bid, which clause has not been challenged by the petitioner. Accordingly, the award of work to the respondent No. 4 cannot be challenged. 25. Mr. Khagemba also submits that para 30.1 of SBD itself provides that employer reserves the right to accept or reject any Bid, which clause has not been challenged by the petitioner. Accordingly, the award of work to the respondent No. 4 cannot be challenged. 26. Mr. Khagemba also submits that the petitioner has made contradictory statements in the writ petition as regards the declaration of the Financial Bids in different paragraphs on different dates and as such, it has raised disputed questions of fact and hence any objection involving disputed facts ought not be dealt by the Court exercising writ jurisdiction. 27. Mr. Khagemba further submits the petitioner has been taking an inconsistent and contradictory stand as evident from the pleadings in the rejoinder affidavit filed by them. In Para No.4 thereof, while the petitioner contended that the evaluation of the bids was not done by a computer software but manually, the petitioner contends to the contrary in para No.11 to the effect that determination of the bid was done on the basis of the software. Mr. Khagemba further submitted that the petitioner cannot be allowed to approbate and reprobate by making contradictory submissions. The petitioner while submitting that computer software was not used for evaluation of the tenders, again submits that it was done manually. Such inconsistent stand is impermissible as held by the Hon'ble Supreme Court in Joint Action Committee of Air Line Pilots' Association of India (ALPAI) & ors. v. Director General of Civil Aviation & ors. reported in (2011) 5 SCC 435 . 28. Mr. Khagmeba has submitted that the petitioner has not approached this Court with clean hands and has relied on the decision of the Hon'ble Supreme Court in REX v. Kensington Income Tax Commissioners, 1917(1) K.B. 486, All India State Bank Officers Federation through its President and ors. v. Union of India & ors., 1990 (Supp) SCC 336, etc. Mr. Khagemba also has drawn attention of the Court on the limitations of the writ Court in deciding contractual dispute by referring to the decisions of the Hon'ble Supreme Court in Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. & anr. (2005) 6 SCC 138 , Sanjay Kumar Shukla v. Bharat Petroleum Corporation Ltd. & ors.; (2014) 3 SCC 493 etc. (2005) 6 SCC 138 , Sanjay Kumar Shukla v. Bharat Petroleum Corporation Ltd. & ors.; (2014) 3 SCC 493 etc. Further, it has been submitted that the petitioner has failed to show any legal injury which would entitle the petitioner to approach this Court by relying on the decision of the Hon'ble Supreme Court in the case of Balasaheb Arjun Torbole & ors. v. Administrator and Divisional Commissioner & ors., (2015) 6 SCC 534 . 29. Mr. Khagemba also submitted by relying a decision of this Court in W.P(C) No.30 of 2015 decided on 06.10.2015 that unless the defect is found to be of substantial nature, but of a minor nature, such a defect ought not affect the validity of the bid. In the present case, it has been submitted that the defect as alleged by the petitioner about the name of the firm is a minor one which was already well known to the petitioner. It has been submitted by Mr. Khagemba that the fact that the petitioner had earlier filed a writ petition being W.P(C) No.703 of 2015 with the correct description of the respondent No.4 as V.S. Nganingkhui and seeking similar relief as claimed in the present writ petition being W.P(C) No. 732 of 2015, which was withdrawn by the petitioner and later filed the present writ petition, clearly indicates that the petitioner fully knew the identity of the respondent No.4. However, the petitioner has filed W.P(C) No.732 of 2015 with the intention to mislead the Court by portraying a picture that the respondent No.4 V.S. Nganingkhui and Ms Nganingkhui are different persons and manage to obtain an ex parte interim order. 30. On consideration of the respective contentions of the parties, this Court observes that the petitioner has raised two substantial issues. As regards the other issues raised by the respondents, more particularly the respondent no. 4, this Court is of the view that these need not be considered if the two main issues raised by the petitioner is decided against the petitioner. Hence, this Court would proceed to examine first these two issues raised by the petitioner. As regards the other issues raised by the respondents, more particularly the respondent no. 4, this Court is of the view that these need not be considered if the two main issues raised by the petitioner is decided against the petitioner. Hence, this Court would proceed to examine first these two issues raised by the petitioner. The first issue raised by the petitioner is that the bid of the respondent no.4 ought not have been accepted at all to start with as the Respondent no.4 cannot be said to be a valid bidder since there is no such registered contractor/firm as Ms Nganingkhui in whose name the bid was submitted. Secondly, it has been strenuously argued by the petitioner that the bid of the respondent no.4 cannot be said to be responsive as it was too low below the estimated bid amount to be practicable. Acceptance of such an unrealistically low bid amount would seriously compromise with the quality of the work which would be against public interest. 31. As regards the first issue raised by the petitioner, it is to be noted that though the bid was submitted in the name of Ms Nganingkhui, the respondent no.4 had submitted along with the tender documents his application for making necessary correction and allowing him to take part in the e-Tender explaining that at the time of registering online, the trade name had been erroneously entered as Ms Nganingkhui and this name has been so recorded in the Digital Signature Certificate. In view of the aforesaid request of the Respondent no.4, the Tender Committee examined the discrepancies and on consideration of the documents so furnished by the respondent no.4, the Committee accepted the plea of the respondent no.4 that V.S. Ngningkhui and Ms Nganingkhui are the same and one entity and it was through bona fide mistake the name of Ms Nganingkhui had been wrongly recorded in the Digital Signature Certificate and accordingly the Tender Committee in their meeting held on 8.12.2014 took the resolution for allowing the Respondent no.4 to take part in the tender process. What this Court has observed is that the Tender Committee found the mismatch and discrepancy in the name of the bidder and related documents to be a genuine one and the Tender Committee was satisfied that Ms Nganingkhui and V.S. Naganingkhui are the same and one entity. What this Court has observed is that the Tender Committee found the mismatch and discrepancy in the name of the bidder and related documents to be a genuine one and the Tender Committee was satisfied that Ms Nganingkhui and V.S. Naganingkhui are the same and one entity. This Court does not find such a conclusion arrived at by the Tender Committee to be irrational, unreasonable or unwarranted and hence would not like to interfere with such a finding of fact. This Court is of the view that if Ms Nganingkhui and V.S. Naganingkhui are the same entity, it hardly calls for any interference from this Court. It may also be noted that it is not the case that after the bid process had started and completed that the Respondent no. 4 made the claim subsequently that Ms Nganingkhui and V.S. Naganingkhui are the same entity. It is not the case that one entity is trying to usurp the identity of another entity, in which event it would amount to playing fraud. In the present case such is not the position. It is not that bid submitted by one bidder is claimed by a different bidder to be his own. The Respondent no.4 had been claiming and trying to clarify the matter even before the tender process started that Ms. Nganingkhui and V.S. Nganingkhui are the same and one person. Therefore, if the authorities are satisfied that these two are same and one entity even before the tender process had started, there is no fraudulent element involved and it can be said to be a genuine error as found by the Tender Committee. In view of the aforesaid finding of the Tender Committee, this Court holds that such a discrepancy is only a minor one and not of a substantial nature so as to invalidate the bid of the Respondent no.4. 32. This takes us to the more serious issue raised by the petitioner that the bid of the respondent no.4 was fantastically low and unrealistic and cannot be said to be responsive in terms of the SBD. True, the rate quoted by the Respondent no.4 is -14.89% below the estimated tender amount which is quite low. But the question is how to determine that such a rate is unrealistically low as to virtually nullify the proper execution of the work with quality. True, the rate quoted by the Respondent no.4 is -14.89% below the estimated tender amount which is quite low. But the question is how to determine that such a rate is unrealistically low as to virtually nullify the proper execution of the work with quality. For this, of course, it has be based on certain expert opinion, and which opinion unless irrational or too fantastically unrealistic, ought not be rejected outright. 33. Though the petitioner has strenuously argued that the aforesaid figure is fantastically low, the official respondents have contended that it has been found to be within the acceptable range. As to what is the acceptable range in the present case has been determined by the authorities to be (-25/%) below the Engineeer's estimate/estimated bid amount as worked out on the basis of the instructions of the Director (RC), Government of India, Ministry of Rural Development, Rural Connectivity Division as contained in the letter dated 22.7.2015. Though, it may be also contended that such a low limit is not realistic, in which event it would be the responsibility of the petitioner to demonstrate before this Court that such figure could not have been arrived at on the basis of certain undisputable parameters or factors. In absence of any such a proof, the lower limit so put by the authority cannot be ignored. Therefore, this Court would clarify that in any tender process as in the present case, the aggrieved party or the petitioner would be at liberty to show on the basis of undeniable facts that such a limit on the lower side is impossible or feasible or irrational. Till the petitioner discharges such a burden, this Court has to accept such determination made by the experts. In the present case, the petitioner has not been able to demonstrate before this Court that the rate of (-14.89%) below the estimated tendered amount accepted by the Tender Evaluation Committee is impossible and irrational. 34. Of course, the petitioner has made a serious endeavour to show that the rate quoted by the respondent no. 4 is not practically feasible if he has to abide by all the legal obligations and liabilities and for this the petitioner has taken this Court to the prevailing market rates of materials and services. 34. Of course, the petitioner has made a serious endeavour to show that the rate quoted by the respondent no. 4 is not practically feasible if he has to abide by all the legal obligations and liabilities and for this the petitioner has taken this Court to the prevailing market rates of materials and services. However, this Court is not sitting as an appellate authority to examine the correctness or evaluate the rates, which is to be exercised by the experts, which in the present case has been done by Tender Evaluation Committee. If the Tender Evaluation Committee holds the view that the rate quoted by the respondent no. 4 is workable, it may not be appropriate for this Court in exercise of judicial review in contractual matter to interfere with such a finding. 35. It may be noted that in the present case, the choice as regards the feasibility of the rate of the respondent no. 4 is between the version of the petitioner vis-a-vis the version of the official respondents. While the petitioner contends that the rate quoted by the respondent no. 4 is impracticable, the official respondents contend that such a rate is workable. Though the version of the petitioner may be also acceptable, yet if the version of the official respondent is also possible, in absence of any malafide, then there is no reason why the version of the official respondents should be rejected. Further, the matter could have been otherwise, if the petitioner had produced certain impracticable or irrefutable evidence to show that the rate quoted by the respondent no. 4 is impracticable or if there could be expert opinion to cast serious doubt on the feasibility of the rate quoted by the respondent no. 4. In absence of such indisputable evidences, this Court would be slow in interfering with the finding and opinion of the State based on expert opinion. 36. The respondents have also stated that considering the low bid price, the Respondent no.4 was asked to justify the rate which the Respondent no.4 did which the Tender Evaluation Committee found to be acceptable. In such an event unless there is mala fide or wholly impossible figure quoted, this Court is of the view that it would not be appropriate to interfere with the decision of the authority. 37. In such an event unless there is mala fide or wholly impossible figure quoted, this Court is of the view that it would not be appropriate to interfere with the decision of the authority. 37. The petitioner has strongly objected to the aforesaid determination of the lower limit after the bids had been submitted. The petitioner contends that such fixation of limit ought to have been made known to the bidders in advance. This Court is not impressed with this submission. If the said limits had been made known to the bidders, there would always a possibility that all the bidders would bid the same amount which would negate the entire tender process. It may be also noted that in the present case no bidder had been disqualified on the ground that the bid price quoted is lower than the lowest permissible limit. In such an event, the disqualified bidder could question the modality or criteria of fixing the lowest limit which had ousted bidder. In the present case, that is not the situation as none of the bidder had been ousted. The bid price of the petitioner was not accepted as it was not the lowest bid price. Since, his case is not of ouster or rejection for being beyond the permissible limit, this Court may not consider the issue whether fixing (-25%) below the estimated tendered amount is reasonable or not, more so after the Tender Evaluation Committee had accepted the bid price of the Respondent no.4 at (-14.89%) below the estimated tender amount to be workable. 38. The petitioner also contended that if at the time of price evaluation, the fact that the Respondent no.4 owns the machineries and was willing to work at a much lower rate was taken into consideration, the petitioner could have been also given the same opportunity and he could have also reduced the rates accordingly as he also owns his machineries and is also willing to forgo his profit margin and work at a lower rate. This contention, however, cannot be accepted in view of the fact that if the petitioner had desired, he could also have quoted a lower price which he did not. There is nothing in the tender notice that bid quoted below the tendered amount would be rejected. This contention, however, cannot be accepted in view of the fact that if the petitioner had desired, he could also have quoted a lower price which he did not. There is nothing in the tender notice that bid quoted below the tendered amount would be rejected. The Respondent no.4 took a calculative risk by quoting a low rate which the petitioner could have also taken, which he did not. Further, there was no negotiation of the price by the Respondent no.4. He had to merely justify his bid price which was considered very low which he did and it was found acceptable to the authorities. 39. This Court has made these observations keeping in mind the inherent limitations of the Court while exercising the power of judicial review in contractual matters and this Court does not wish to burden this judgment with the large number of decisions relied upon by both the parties, more particularly the Respondents in this regard. Suffice to say that the Court while exercising the power of judicial review would normally scrutinise the decision making process, and in the present case, this Court has not observed any fundamental or serious flaw in the decision making process. The other concern of the Court is whether the process has been vitiated with mala fide, unreasonableness and arbitrariness and this Court is also satisfied that such fatal defects are missing in the tender process in issue. 40. However, there is an aspect relating to public interest regarding which this Court would like to make certain observations. It does not serve the public interest that such work contract should be unduly delayed, as expeditious execution of work would be in public interest. But the petitioner has raised a fundamental question that awarding the contract at such low price would seriously compromise with the quality of the work. It is the contention of the petitioner that if the experts and engineers had worked out the estimated cost of the work by taking into consideration all the relevant factors including the current price structure of the materials and service, how it will be feasible for the Respondent no. 4 to execute the work at such a low amount as it is not expected of the respondent no.4 to forgo all his profit and also pay less for the services he will be hiring/engaging and paying for the raw/construction materials. 4 to execute the work at such a low amount as it is not expected of the respondent no.4 to forgo all his profit and also pay less for the services he will be hiring/engaging and paying for the raw/construction materials. According to the petitioner, obviously the quality of work will suffer if the respondent no. 4 has to execute the work at such a low price which is far below the market price. Furthermore, if the Respondent no.4 leaves the work in the mid way because of his inability to maintain the quality of work, it will be the public interest which will suffer. 41. This is a contention which can not be confined only to the petitioner. It should be the concern of all including the respondents as well as the public at large that the work be executed by maintaining the quality. The State is the custodian of public finance and as such it is expected to scrupulously safeguard the same, for which it should take all the reasonable and necessary steps. Since, the authorities had worked out an estimated amount for executing the work which was mentioned in the tender, which the authorities considered to be the optimum amount or cost, and since the authorities have accepted the bid of Respondent no. 4 which was very low compared to the estimated value of the work, it is expected that the authorities will take all the necessary steps to safeguard the public interest in ensuring execution of the work without compromising the quality of the work. In this regard, the authority can invoke the provisions under the SBD (Clause 27.3) which authorises the authority to increase the performance security for protection of the State against financial loss in the event of default of the successor bidder under the contract. The estimated cost of the work in issue under Package No. MNO 696A as per tender notice is Rs.8,52,70,296/- against which the Respondent no.4 had quoted an amount of Rs. 7,25,74,733.19/- which was accepted, thus there is a difference of Rs. 1,26,95,563/- between the contractual cost and estimated cost. In the event the Respondent no.4 defaults in execution of the work, the authorities may consider giving the work to the petitioner or may call for a fresh tender. 7,25,74,733.19/- which was accepted, thus there is a difference of Rs. 1,26,95,563/- between the contractual cost and estimated cost. In the event the Respondent no.4 defaults in execution of the work, the authorities may consider giving the work to the petitioner or may call for a fresh tender. To meet such an eventuality, and in order to offset any financial loss to the State, the official Respondents should insist upon increasing the performance guarantee at the expense of the Respondent no.4 to the extent of the aforesaid difference amount of Rs. Rs. 1,26,95,563/-. In other words, the Official respondents will insist on additional performance guarantee from the Respondent no.4 in addition to the guarantee/security already executed by the Respondent no.4 so that the total security amount or performance guarantee stands at Rs. 1,26,95,563/- to ensure that the work is executed without compromising with quality. This Court is of the view that such an additional performance guarantee will adequately safeguard public interest. 42. In view of the above findings, this Court does not deem it necessary to deal with other pleas raised by the parties as this Court is of the view that the other collateral issues raised will not substantially affect the tender process or vitiate the tender process. 43. For the reasons discussed above, this Court does not find any reason to interfere with the decision of the authorities to award the contract to the Respondent no.4 and accordingly, dismiss the writ petition, subject to the direction given in the preceding paragraph no. 41 of this judgment for directing the respondent no. 4 to execute additional performance guarantees so as to cover the amount of Rs. 1,26,95,563/-. WP(C) No. 733 of 2015 44. The dispute in this writ petition relates to work under Package No. MNO697A. Similar pleas have been taken in challenging the bids offered by the Respondents no.4, 5 and 6 as too low and below the estimated tender amount. The additional plea against the Respondent no.4 Ms. Nganingkhui is that she is not eligible as has been raised also as in the earlier writ petition, W.P.(C) No. 733 of 2015. The Respondent no. 4 was the lowest bidder whose rate was 14.99% below the BOQ, the Respondent no. 5 had quoted 8.00% below the BOQ and the Respondent no.6 had quoted 5.49% below BOQ. Nganingkhui is that she is not eligible as has been raised also as in the earlier writ petition, W.P.(C) No. 733 of 2015. The Respondent no. 4 was the lowest bidder whose rate was 14.99% below the BOQ, the Respondent no. 5 had quoted 8.00% below the BOQ and the Respondent no.6 had quoted 5.49% below BOQ. The petitioner in this writ petition has taken the similar plea that these low rates are unrealistic and cannot be said to be responsive. Similar defence was raised by the respondents justifying the aforesaid low rates. 45. This Court by applying the same reasoning and principles adopted in W.P.(C) No. 732 of 2015 holds that the present writ petition is also devoid of merit and accordingly it stands dismissed, however, with the direction that at the time of awarding the contract, the official Respondents are to insist from the successful bidder to execute additional performance guarantee from the successful bidder to the extent of the difference in the bid amount accepted and the estimated tender amount mentioned in the Tender for safeguarding public interest. WP(C) No. 861 of 2015 46. In this writ petition, the work under Package No. MNO971 is involved. Similar pleas have been taken in challenging the bids offered by the Respondents no.4 and 5 as too low and below the estimated tender amount and hence unresponsive. The additional plea raised against the Respondent no.4 Ms. Nganingkhui that she is not eligible as in the earlier writ petition, W.P. (C) No. 733 of 2015. The Respondent no. 4 was the lowest bidder whose rate was -14% below the BOQ, the Respondent no. 5 had quoted 6.50% below BOQ. The petitioner in this writ petition has taken the similar plea that these low rates are unrealistic and cannot be said to be responsive. Similar defence has been raised by the respondents justifying the aforesaid low rates. 47. This Court by applying the same reasoning and principles adopted in W.P.(C) No. 732 of 2015 holds that the present writ petition is also devoid of merit and accordingly it stands dismissed, however, with the direction that at the time of awarding the contract, the official Respondents are to insist to execute additional performance guarantee from the successful bidder to the extent of the difference in the bid amount accepted and the estimated tender amount mentioned in the tender for safeguarding public interest. 48. 48. All the three petitions are accordingly dismissed with the directions for securing additional performance guarantees from the successful bidders who are to execute the works as directed above.