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Manipur High Court · body

2017 DIGILAW 18 (MAN)

R. S. Daikho v. State of Manipur

2017-07-14

KH.NOBIN SINGH

body2017
JUDGMENT : Kh. Nobin Singh, J. Heard Smt. Ayangleima, the learned counsel appearing for the petitioner; Shri K. Rabei, the learned counsel appearing for the respondent No.1; Shri M. Hemchandra, the learned Senior Advocate appearing for the respondent Nos.2 and 3 and Shri N. Jotendro, the learned Senior Advocate appearing for the respondent No.4. 2. By the instant writ petition, the petitioner has prayed for issuing a writ of Mandamus or Certiorari or any other appropriate writ or direction to the respondent Nos.2 and 3 not to award the tender work without evaluating the rate of each item by calling for the records as regards the financial bid evaluation report with rational justification by accepting the private respondent as the first lowest reasonable bidder. 3. According to the petitioner, he is a registered special class Government Contractor, Manipur State Rural Roads Development Authority (hereinafter referred to as "the Manipur Rural Development Authority") which floated a tender vide NIT dated 24-10-2014 inviting item rate tender from the eligible contractors for execution of a number of works under the various packages. The petitioner being a competent and eligible contractor, participated in the tender in respect of package No. MNO 6245 along with others including the private respondent by submitting his tender. The Part-I of the bid i.e., technical bid of the said tender was opened on 28-11-2014. After the evaluation of their bids, the petitioner and the private respondent were qualified for the financial bid after their technical bids being declared on 25-12-2014 after a lapse of 21 days, although the evaluation of the technical bid was to be completed within five working days. The financial bid was opened on 03-02-2015 and both the petitioner and the private respondent were admitted as substantially responsive bidders with both of them being listed as the 2nd and 1st lowest bidders. Without evaluation and comparison of their bids, the private respondent was given the chance of justifying his bids while denying the same to the petitioner. The financial bid was opened on 03-02-2015 and both the petitioner and the private respondent were admitted as substantially responsive bidders with both of them being listed as the 2nd and 1st lowest bidders. Without evaluation and comparison of their bids, the private respondent was given the chance of justifying his bids while denying the same to the petitioner. Being aggrieved by the actions of the respondent Nos.2 and 3, the instant writ petition has been filed by the petitioner on the inter-alia grounds:- (a) Without comparing the bids/bid prices amongst the substantially responsive bids by proper evaluation of the bid price/item wise rates i.e. without proper justification of the item wise rates of the competing bidders, the respondent No.2 has blindly decided the bid of the private respondent to be the 1st lowest substantially responsive bid whose overall rates are 16.79% below Bill of Quantity while that the petitioner as 0.87% above BOQ. (b) The respondent No.2 has failed to evaluate and compare the bids of the petitioner and the private respondent in the matter as provided in Clause 25 and 26 of SBD and the respondent No.2 is not empowered to decide the tender on his own volition based on the overall cost/price without proper justification of the reasonability of the items by setting aside the other responsive bids meaning thereby that the respondent No.2 is not bound to blindly accept the lowest bid based on the overall cost/price of BOQ and it is the Committee consisting of Chairman and Members which has to scrutinize the tender. (c) The respondent No.2 has failed to see that the private respondent has offered abnormally low rate of major items ranging from 27 to 30% on compensatory basis and not on technical basis in case of construction component which were never justifiable in such remote hill area at high altitude about 60 km. from Imphal. (d) The private respondent has offered two or more rates for the same item of the same work which is equivalent to submission of two or more bids of the same work by the same bidder which is in violation of Clause 5.1 of SBD and offering of alternative proposal in the BOQ is not allowed in Clause 17.1. of SBD and hence, the bid of the private respondent being non-responsive, should have been rejected by the respondent No.2. of SBD and hence, the bid of the private respondent being non-responsive, should have been rejected by the respondent No.2. (e) The private respondent has seriously lowered the rates of maintenance component in the BOQ which is the lum sum standard provision based on the cost of the construction component being not assessable prior to completion of the work. (f) The private respondent, with the presumption that overall rate of around 17% (with narrow margin) below the BOQ may be the winning rate, has abruptly lowered the rate of maintenance component to about 46.84% below the schedule to compensate the higher rates of the construction component for arriving at their targeted average/overall rate of 16.59% below the BOQ in order to become the first lowest bidder. (g) There is no scope of seriously lowering the rate of private respondent at the BOQ as has been done by him as the work is in the remote hill area where there is no means/facilities for lessening the minimum workable rate to such an extent. (h) The declaration of the private respondent as the first lowest substantially responsive bidder without detailed evaluation of the Part-II bid by violating the relevant provision under the SBD for PMGSY is highly arbitrary and malafide being violative of Article of 14 and 19 of the Constitution of India. (i) The petitioner was under the impression that the tender is still under process, since he has not received any information about the tender in terms of Clause 31.5 of SBD. (j) There is strong apprehension of the contract work being awarded to the private respondent without evaluating the item rates, as has been done in the last two years. 4. In order to contest the writ petition, an affidavit-in-opposition on behalf of the respondent Nos.2 and 3 has been filed wherein the allegations and the averments made in the writ petition have been denied. It is stated that the item rate tender was invited through e-procurement from eligible contractors in respect of various packages and the item rate bids/tender amounts quoted by the bidders are automatically evaluated through e-Procurement/GEPNIC of PMGSY and there is no hand of the official respondents in generating the L1, L2, L3, L4, etc. It is stated that the item rate tender was invited through e-procurement from eligible contractors in respect of various packages and the item rate bids/tender amounts quoted by the bidders are automatically evaluated through e-Procurement/GEPNIC of PMGSY and there is no hand of the official respondents in generating the L1, L2, L3, L4, etc. The private respondent submitted the rate justification/clarification of item rate quoted by him vide his letter dated 13-02-2015 thereby stating that he will execute his work as per the specification at his quoted rate. There is no undue delay in the process of financial bid evaluation. The Tender Committee evaluated and compared the bids in accordance with Clause 25 and 26 of ITB/SDB and in the present case, the item rate quoted by the private respondent at -16.00% is below the estimated rate of the engineers, which was found to be within the permissible limit by the Tender Committee. After the financial bid was opened and when the bid of the private respondent was found to be as low as -16.00% below the estimated cost, the private respondent was asked to justify the rate quoted vide letter dated 07-02-2015 and accordingly, he submitted his justification on 13-02-2015. On consideration of the tender documents along with justification furnished by the private respondent, it was found to be internally consistent and the private respondent had also shown his willingness to execute the work at the quoted rate without compromising the quality of work. Generally, L-1 bidder is given or called for rate justification for the rate quoted by them and if the rate justification of L1 is not satisfied, it will be rejected. After applying all the relevant parameters and taking into consideration that the private respondent owned and possessed the required machineries and after deducting the services charges, overhead charges, running charges, etc., the rate quoted by the respondent was found to be workable. The justification was not sought for from the petitioner, as he quoted the exact schedule rate. As per clause 27.2 of the SBD, the employer reserves the right to accept or reject any variation, deviation or alternative. The justification was not sought for from the petitioner, as he quoted the exact schedule rate. As per clause 27.2 of the SBD, the employer reserves the right to accept or reject any variation, deviation or alternative. In the order dated 15-04-2013 passed in WP(C) No. 588 of 2012, it has been held by this court that there was no illegality in the acceptance of the lowest tender of the respondent No.6 therein and the allegation of unfairness or arbitrariness has not been established. The issue involved herein is covered by the common judgment and order dated 15-11-2016 passed in WP(C) No. 732 of 2015, WP(C) No. 733 of 2015 and WP(C) No. 816 of 2015 and therefore, the petition is liable to be dismissed by this court. The affidavit-in-opposition filed by the private respondent is in line with that of the respondent No.2 & 3 and in addition thereto, it has been stated that before filing the writ petition, the petitioner submitted a representation dated 21-02-2015 which was rejected by the authority, as the bid of the private respondent having been found to be the lowest bidder. Accordingly, the concerned authority directed the private respondent to submit the rate justification before the competent authority. As per the guidelines issued by the State Government dated 24-02-2014, Additional Performance Security is imposed by the authority in respect of the range of item rate quoted below the current schedule of rates. 5. Before coming to the facts of the present case, this court deems it appropriate to re-visit the principles laid down by the Hon'ble Supreme Court in matters relating to award of contract and in this regard, various decisions of the Hon'ble Supreme Court have been cited by the learned counsels appearing for the parties, of which the earliest one is the decision rendered in Tata Cellular v. Union of India, reported in (1994) 6 SCC 651 wherein two main issues - one, relating to the scope of judicial review and two, relating to selection being vitiated by arbitrariness, which are relevant for this case also, were considered and decided by the Hon'ble Supreme Court. In matters relating to contracts wherein one of the parties is the public authority, the question to be asked is, have the guidelines been laid down, if so laid down, have they been observed? In matters relating to contracts wherein one of the parties is the public authority, the question to be asked is, have the guidelines been laid down, if so laid down, have they been observed? The Hon'ble Supreme Court, after referring to its earlier decisions, summarised the principles which are the broad grounds subject to addition of further grounds in course of time. The Hon'ble Supreme Court held: "69. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender: 1. It must be unconditional. 2. Must be made at the proper place. 3. Must conform to the terms of obligation. 4. Must be made at the proper time. 5. Must be made in the proper form. 6. The person by whom the tender is made must be able and willing to perform his obligations. 7. There must be reasonable opportunity for inspection. 8. Tender must be made to the proper person. 9. It must be of full amount. 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 88. 71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 88. We may now look at some of the pronouncements of this Court including the authorities cited by Mr. Ashoke Sen. Fasih Chaudhary v. Director General, Doordarshan was a case in which the Court was concerned with the award of a contract for show of sponsored TV serial. At p. 92 in paragraphs 5 and 6 it was held thus: "It is well settled that there should be fair play in action in a situation like the present one, as was observed by this Court in Ram & Shyam Co. v. State of Haryana. It is also well settled that the authorities like Doordarshan should act fairly and their action should be legitimate and fair and transaction should be without any aversion, malice or affection. Nothing should be done which gives the impression of favouritism or nepotism. See the observations of this Court in Haji T.M. Hassan Rawther v. Kerala Financial Corpn. While, as mentioned hereinbefore, fair play in action in matters like the present one is an essential requirement, similarly, however, 'free play in the joints' is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one. Judged from that standpoint of view, though all the proposals might not have been considered strictly in accordance with order of precedence, it appears that these were considered fairly, reasonably, objectively and without any malice or ill-will." 94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure". In Air India Ltd. v. Cochin International Airport Ltd. & ors, reported in (2000) 2 SCC 617 wherein it has been held that the law relating to award of a contract has been settled by the Hon'ble Supreme Court, the relevant para 7 of which is as under: "7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd.. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. In Jagdish Mandal v. State of Orissa, reported in (2007) 14 SCC 517 , the decision in Tata Cellular case (supra) was referred to and relied upon with the following observations: "This Court also noted that there are inherent limitations in the exercise of power of judicial review of contractual powers. This Court also observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. This Court held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14". This Court held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14". In Maa Binda Express Carrier v. North-East Frontier Railway, reported in (2014) 3 SCC 760 , the Hon'ble Supreme Court has held that the submission of tender is no more than making an offer which the State or its agencies are under no obligation to accept and the bidders in the tender cannot insist that their tenders should be accepted simply because a given tender is the highest or the lowest. It has further been held that the only enforceable right that a bidder has, is to examine by the court whether the aggrieved party has been treated unfairly or discriminated against to the detriment of the public interest. In Rishi Kiran Logistics Private Ltd. v. Board of Trustees of Kandla Port Trust & anr., reported in (2015) 13 SCC 233 , the decision of the Hon'ble Supreme Court in Tata Cellular Case (supra), has been followed with the observation that a lucid enunciation on the scope of judicial review of administrative action, that too in tender matters can be found therein. It is thus seen that the law, as regards the matters relating to award of contracts involving a public authority, is no longer res integra. There is no need of multiplying the decisions rendered by the Hon'ble Supreme Court in this regard and suffice it to say that the court's power of judicial review of administrative action is limited to the extent indicated in the decisions mentioned hereinabove. 6. It is not in dispute that the NIT dated 24-10-2014 was issued by the Chief Engineer, MSRRDA whereby it is notified that tender should be submitted Online on website www.pmgsytendersman.gov.in and that the bid documents consisting of qualification, information on eligibility criteria of bidders, audited statements for the last five years etc. are available on website. It is also specifically provided in the NIT that the employer reserves the right to reject any or all the tenders without assigning any reasons thereof. are available on website. It is also specifically provided in the NIT that the employer reserves the right to reject any or all the tenders without assigning any reasons thereof. As per the instructions to Bidders, the Standard of Bidding Documents (SBD) are not to be uploaded by the bidder and the bidder has to agree/disagree on the conditions prescribed in SBD. The bidders who disagree on the conditions of SBD, cannot participate in the tender. Clauses 18 and 19 of the Instructions to Bidders provide for submission of bids respectively. Clauses 18 and 19 are reproduced herein below: "18. Bidding through E-Tendering System: 18.1. The bidding under this contract is electronic bid submission through website www.pmgsytendersman.gov.in Detailed guidelines for viewing bids and submission of online bids are given on the website. The Invitation for Bids under PMGSY is published on this website. Any citizen or prospective bidder can logon to this website and view the Invitation for Bids and can view the details of works for which bids are invited. The perspective bidder can submit bids on line; however, the bidder is required to have enrolment/registration in the website and should have valid Digital Signature Certificate (DSC) in the form of smart card/e-token. The DSC can be obtained from any authorised certifying agencies. The bidder should register in the website www.pmgsytendersman.gov.in using the relevant option available. Then the Digital Signature registration has to be done with the e-token, after logging into the site. After this, the bidder can login the site through the secured login by entering the password of the e-token & the user id/password chosen during registration. After getting the bid schedules, the Bidder should go through them carefully and then submit the documents as asked, otherwise, the bid will be rejected. 18.2. The completed bid comprising of documents indicated in ITB clause 12, should be uploaded on the website given above through e-tendering along with scanned copies of requisite certificates as are mentioned in different sections in the bidding document and scanned copy of bid security in case it is provided in the form of DD/FDR. 18.3. The bidder shall furnish information as described in the Form of Bid on commissions or gratuities, if any, paid or to be paid to agents relating to the Bid, and to contract execution if the bidder is awarded the contract. 19. Electronic Submission of Bids: 19.1. 18.3. The bidder shall furnish information as described in the Form of Bid on commissions or gratuities, if any, paid or to be paid to agents relating to the Bid, and to contract execution if the bidder is awarded the contract. 19. Electronic Submission of Bids: 19.1. The bidder shall submit online two separate files. Part I, marked as Part I: Technical Qualification Part and Part II; marked as Part II: Technical-Financial Part. The above files will have markings as given in the Bid Data Sheet. The contents of the Technical Qualification and Technical Financial bid shall be as specified in clause 12 of the ITB. All the documents are required to be signed digitally by the bidder. After electronic on line bid submission, the system generates a unique bid identification number which is time stamped. This shall be treated as acknowledgement of bid submission." The Pradhan Mantri Gram Sadak Yojna (PMGSY) is a flagship programme launched by the Union of India for providing connectivity to target unconnected habitations in the country and in this programme, 100% funds for construction of good all weather roads are provided to the State Governments. Accordingly, PMGSY programme guidelines have been issued providing for invitation of tenders by the executing agency through e-tendering process and the well established procedure for tendering through competitive bidding, is required to be followed by the executing agency for all projects. Under the programme, e-tendering has been made mandatory and e-procurement Software of NIC "GEPNIC" is being used by most of the States. Under e-tendering, the contractors are required to upload technical and financial bids in e-tendering module which is opened by the designated authority using the Digital Signature Certificate (DSC). The evaluation of bids is carried out in two parts - one, the technical bids and two, the financial bids. Clause 22 of the ITB provides the procedure for opening bids. The part-I of the bid shall be opened first and after the result of the evaluation of Part-I of the bids having been made public on e-procurement, a period of five days will be given so that any bidder may submit compliant which shall be considered before opening of Part-II of the bid. Part-II bids of only these bidders who have been qualified during evaluation of Part-I of the bid, will be opened online. Part-II bids of only these bidders who have been qualified during evaluation of Part-I of the bid, will be opened online. A duty is cast upon the employer to prepare the minutes of the online opening of Part-II bids and upload the same for viewing online. Clause 25 of the ITB provides the procedure as to how the bids are to be examined and the responsiveness thereof are to be determined. A substantially responsive bid is one which conforms to all the terms, conditions, and specifications of the bidding documents, without material deviation or reservation. Clause 26 provides guidelines for evaluation and comparison of bids. Clause 25 and 26 of ITB are reproduced herein below: 25. Examination of Bids and Determination of Responsiveness 25.2. A substantially responsive bid is one which conforms to all the terms, conditions, and specifications of the bidding documents, without material deviation or reservation. A material deviation or reservation is one (a) which affects in any substantial way the scope, quality, or performance of the Works; (b) which limits in any substantial way, inconsistent with the bidding documents, the Employer's rights or the Bidder's obligations under the Contract; or (c) whose rectification would affect unfairly the competitive position of other bidders presenting substantially responsive bids. 25.3. If a bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the nonconforming deviation or reservation. 26. Evaluation and Comparison of Bids 26.1. The Employer will evaluate and compare only the bids determined to be substantially responsive in accordance with Clause 25 of ITB. In evaluating the bids, the Employer will determine for each bid the evaluated bid price by adjusting the bid price through making an appropriate adjustment for any other acceptable variation, deviations or price modifications offered in accordance with sub-clause 22.5. 26.2. The Employer reserves the right to accept or reject any variation, deviation, or alternative offer. Variations, deviations and alternative offers and other factors which are in excess of the requirements of the bidding document or otherwise result in unsolicited benefits for the Employer shall not be taken into account. 26.3. 26.2. The Employer reserves the right to accept or reject any variation, deviation, or alternative offer. Variations, deviations and alternative offers and other factors which are in excess of the requirements of the bidding document or otherwise result in unsolicited benefits for the Employer shall not be taken into account. 26.3. If the Bid of the successful Bidder is seriously unbalanced in relation to the Engineer's estimate of the cost of work to be performed under the contract, the Employer may require the Bidder to produce detailed price analyses for any or all items of the Bill of Quantities, to demonstrate the internal consistency of those prices with the construction methods and schedule proposes. After evaluation of the price analyses, the Employer may require that the amount of the performance security set forth in Clause 30 of ITB 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 decided at the sole discretion of the Employer, which shall be final, binding and conclusive on the bidder. 26.4. If the Bid of the successful Bidder is seriously unbalanced in relation to the Engineer's estimate of the cost of routine maintenance of works to be performed for five years under the contract, the Employer may require the Bidder to produce detailed price analyses for routine maintenance. After its evaluation, the Employer may require that the amount of the performance security set forth in Clause 30 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 decided at the sole discretion of the Employer, which shall be final, binding and conclusive on the bidder. 26.5. To assist in the examination, evaluation and comparison of bids, the Employer may, at his discretion, ask any bidder for providing clarification of his bid, including breakdown of the unit rates within five days from the clarification seeking date. The request of clarification and the response shall be in writing or by cable but no change in the price or substance of the bid shall be sought, offered, permitted. The request of clarification and the response shall be in writing or by cable but no change in the price or substance of the bid shall be sought, offered, permitted. If clarification is not provided within the stipulated time period, the bid will be declared non-responsive. 7. The main contention of the learned counsels appearing for the respondents is that the issue involved here is covered by the judgment and order dated 15-04-2013 passed by this court in WP(C) No. 588 of 2012 and dated 15-11-2016 in WP(C) No. 732 of 2015, WP(C) No. 733 of 2015 and WP(C) No. 816 of 2015 and therefore, the present writ petition is liable to be dismissed. WP(C) No. 588 of 2012 is the one in which a tender notice dated 20-06-2012 was issued by the PWD inviting tender for execution of work for widening/reconstruction of culverts and pursuant thereto, the petitioners and others including the respondent No.6 submitted their tenders. All the bids were found to be technically responsive and the financial bids were opened on 06-08-2012 and thereafter, the estimated amount quoted by them, were referred to the Tender Evaluation Committee which recommended the bid of the respondent No.6. Two issues came to be considered - one, whether the CPWD Manual is required to be followed as claimed by the petitioner and as to the scope of intervention by this court and two, whether this court could examine the reasonableness or otherwise of the price quoted by the successful tenderer which has been accepted by the authority. This court decided the first issue against the petitioner holding that the CPWD Manual would not be applicable and that the rate quoted by the respondent No.6 seemed to be low, but since the same had been examined by the experts, it would not be advisable for this court to re-look into it. As regards the second issue, this court found that the letters seeking justification were issued not only to the respondent No.6 but to two other lowest bidders and therefore, the contention of the petitioner that he had been singled out for favour treatment, was not sustainable. As regards the second issue, this court found that the letters seeking justification were issued not only to the respondent No.6 but to two other lowest bidders and therefore, the contention of the petitioner that he had been singled out for favour treatment, was not sustainable. The other cases namely WP(C) No. 732 of 2015, WP(C) No. 733 of 2015 and WP(C) No. 816 of 2015 pertain to awarding of contracts under the PMGSY, as is the case with the present case, wherein one of the contentions raised on behalf of the petitioner was that after the bids having 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 SBD and that the same had not been undertaken by the authorities. In response thereto, the learned counsel appearing for the Chief Engineer submitted 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 results indicating as to the lowest or otherwise of the bid. It has been further submitted that such process undertaken by the computer based on software rules out any human intervention at the time of bid evaluation. 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, workable and responsive. Two main issues - one, the bid of the respondent No.4 ought not to have been accepted, as there was no such firm registered as M/s Nganingkhul and two, the bid of the private respondent therein cannot be said to be responsive as it was too low below the estimated bid amount, came to be considered by this court. However, no issue arising out of the above rival contentions as regards the requirement of evaluation under clause 25, was considered by the court at all. However, no issue arising out of the above rival contentions as regards the requirement of evaluation under clause 25, was considered by the court at all. The first issue is not relevant so far as the present case is concerned and as regards the second issue, this court held that this court was not sitting as an appellate authority to examine the correctness or evaluate the rates and since the Tender Evaluation Committee found the rate quoted by the respondent No.4 to be workable, it was not appropriate for this court to interfere with it. 8. It is not in dispute and can never be a dispute that this court cannot sit as an appellate authority over the decision of the expert body and in other words, this court cannot look into the correctness of the decision taken by the Tender Committee. In the present case, it appears that the petitioner and the respondents have no any issue in the process of tender till the comparative chart being generated by the computer. The question that arises for consideration, is as to whether the provisions of clause 25 and 26 of the ITB have been complied with or not, when the comparative chart or the comparative statement is generated by the computer. In other words, the question is as to whether the determination of the responsiveness of the bids as required under clause 25 and the evaluation and comparison of bids as required under clause 26 after the bids being determined to be substantively responsive under clause 25, are to be undertaken by the Tender Committee through the computer. In order to understand and to decide the said questions, the words used in clause 25 are relevant and important and in particular, the expression "during the detailed evaluation of Part-I of bids" which indicates that the exercise is to be undertaken during the course of detailed evaluation. Same is the case with the expression "during the detailed evaluation of Part-II of bids". The reading of these two expressions makes it very clear that the exercise as contemplated under clause 25 of the ITB, ought to be done during the course of evaluation and that too, before the bids-technical bid or financial bid, being opened under clause 22. Same is the case with the expression "during the detailed evaluation of Part-II of bids". The reading of these two expressions makes it very clear that the exercise as contemplated under clause 25 of the ITB, ought to be done during the course of evaluation and that too, before the bids-technical bid or financial bid, being opened under clause 22. It may be noted that under clause 25, what is required to be done by the employer is to determine whether each bid meets the eligibility criteria defined in clause 3 and 4; it has been properly signed; it is accompanied by the required securities and is substantially responsive to the requirements of the bidding documents. On the other hand, clause 26.1 provides that the employer will evaluate and compare the bids determined to be substantially responsive in accordance with clause 25 of ITB and in evaluating the bids, it will determine for each bid the evaluated bid price by adjusting the bid price through making appropriate adjustment for any other acceptable variation, deviation or price modification offered in accordance with sub-clause 22.5. It is therefore seen that this exercise under clause 26.1 is to be undertaken only after the bids being determined to be substantially responsive under clause 25. In order to decide the aforesaid questions, another ancillary question that arises, is as to whether the exercise as contemplated under clause 26.1 is to be undertaken by the Tender Committee through the computer or not because the said expressions as mentioned in clause 25, are not there at all and are found to be missing in clause 26.1. On perusal of the comparative chart filed along with the petition, it is nowhere mentioned therein anything about the fulfilment of the said requirements as mentioned in clause 25 and 26 of the ITB. The comparative chart shows only the comparison of rates quoted by the petitioner and the private respondent and their ranking. It does not state anything about the responsiveness after having conformed to the terms and conditions as mentioned in clause 25 and 26. It is not clear as to what is the role to be played by the Tender Committee after the whole exercise being done by the Computer except signing the reports generated by the computer. It does not state anything about the responsiveness after having conformed to the terms and conditions as mentioned in clause 25 and 26. It is not clear as to what is the role to be played by the Tender Committee after the whole exercise being done by the Computer except signing the reports generated by the computer. It becomes more difficult to understand the role being played by the employer in respect of clause 25 and 26 in view of the averments made in the affidavit filed on behalf of the respondent Nos.2 & 3 to the effect that the Tender Committee evaluated and compared the bids in accordance with clause 25 and 26 of ITB/SDB. This ambiguity has arisen because the respondent Nos.2 & 3 have not come forward with a clear statement as regards stage of the tender process upto which the computer would undertake its exercise. Such a clear statement is all the more necessary and important for the reason that the State Government is committed to follow the principles of transparency and accountability. If clause 26.1 and 26.5 are read together in conjunction with the averments made in their affidavit, it appears that the exercises as contemplated therein, are to be undertaken by the employer but not through the computer. Moreover, if the contention of the learned counsel appearing for the respondent Nos.2 & 3 that the Part-II of the bids i.e., the financial bids is auto generated by the GEPNIC upto the stage of clause 26.1 is accepted, there is a possibility of clause 26.5 being rendered redundant. 9. Be that as it may, on a careful examination of the clauses 26.3 and 26.4, it is almost certain that the power conferred upon the employer under these clauses will have to be exercised by it itself and not through the computer. In other words, such power is to be exercised by the employer only after the successful bidder is known. In the present case, the private respondent after he being shown as L-1 in the comparative chart, was asked to give his justification. In other words, such power is to be exercised by the employer only after the successful bidder is known. In the present case, the private respondent after he being shown as L-1 in the comparative chart, was asked to give his justification. However, such an opportunity was not given to the petitioner and in the affidavit filed on behalf of the respondent Nos.2 & 3, it has been stated that the justification was not sought for from the petitioner, as he quoted the exact schedule rate meaning thereby that the respondent Nos.2 & 3 had called for the justification only from the private respondent merely because his bid was found to be the lowest. It may be noted that the law laid down by the Hon'ble Supreme Court is that the employer is not bound by the lowest bid and it is open to it to decide and accept the bid which will be better in the interest of the public, for which various factors are to be considered by the employer, of which one being the rate quoted by the bidders and the capability of the bidders. This is very important in the context of the State of Manipur because many PILs are being filed before this court contending that some of the works undertaken under the PMGSY are left incomplete or if completed, the same are found to have compromised with the quality of work. As has been stated herein above, admittedly no justification was called for from the petitioner which runs counter to the stand taken by the authorities therein in WP(C) No. 588 of 2012, relied upon by the respondent Nos.2 & 3, wherein letters were issued to two other lowest bidders seeking their justifications. On top of that, pursuant to and in compliance with the order dated 26-06-2017 passed by this court, a file being No.5/16/2014-MSRRDA/E-TENDER/Ph-X/SPT/P-6245 has been produced for perusal by this court and on perusal thereof, it is seen that writing of notes appears to have commenced only from 22-08-2015 and there is no material in the file to show that immediately after the comparative chart being generated by the computer, the bid of the private respondent was considered and accordingly, he was asked to give his justification. Even a copy of the letter dated 07-02-2015 alleged to have been addressed to the private respondent by the Chief Engineer, MSRRDA calling for justification from him, is not there in the file nor is there any note in respect thereof. It thus appears that without any application of mind, the private respondent was given the opportunity to give his justification solely on the ground that he was found to be the L-1. If the respondent Nos. 2 & 3 take the stand that whoever is found to be the L-1, shall only be given the opportunity to justify his bid, it will create a situation where all the contractors will make their attempt to quote rate as low as -50.00% and if the employer is bound by it, ultimately the work will suffer. This is not what is intended in a tender and the employer is expected to explore all avenues to find out the best contractor so that the work can be executed as per the estimate prepared by the engineering experts. Therefore, keeping in mind the provisions of Article 14 of the Constitution, this court is of the view that the ends of justice will be met, if the respondent Nos.2 & 3 are directed to give an opportunity to the petitioner to give his justification so that both the bids of the petitioner and the private respondent can be considered by them and a decision be taken, thereafter, to award the contract. 10. For the reasons stated herein above, the instant writ petition is disposed of with the direction that the respondent Nos.2 & 3 shall give an opportunity to the petitioner to furnish his justification for his bid and in the event of such a justification being furnished by the petitioner within the time as prescribed by them, the respondent Nos.2 & 3 shall take a decision within a reasonable time and award the contract thereafter. The interim order dated 31-08-2015 passed by this court will continue till such a decision being taken by the respondent Nos.2 & 3 after having considered their bids.