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2023 DIGILAW 1373 (JHR)

Infinite Computer Solutions (India) Limited v. Jharkhand Bijli Vitran Nigam Limited

2023-11-23

SANJAYA KUMAR MISHRA, SRI ANANDA SEN

body2023
ORDER : Ananda Sen, J. Petitioner, in this writ petition, has prayed to set aside the alleged arbitrary action of the respondents, as a result of which the petitioner’s technical bid was rejected. Petitioner has also prayed that the documents issued by “UPPCL” in relation to the experience of the petitioner should be considered and thereafter appropriate order be passed considering the petitioner to be technically qualified. By way of an interlocutory application being I.A. No.6397 of 2022, petitioner has also prayed for a writ of mandamus restraining the respondent No.1 from giving effect to the terms and conditions as contained in LOI No.279 dated 23.06.2022; to issue Rule NISI in the nature of writ of certiorari to quash and cancel the LOI No.279 dated 23.06.2022 issued in complete violation of Clause 41-45 of the NIT as also in violation of the notice of debriefing given dated 15.06.2022; to issue a writ of mandamus commanding respondent No.1 to give effect to the terms and conditions of debriefing as contained in Clause 41-45 of the NIT. 2. Arguments of the counsel for the parties were concluded and upon conclusion of the same, the judgment in this case was reserved. 3. The main grievance of the petitioner is that the petitioner was duly experienced and otherwise eligible to participate in the tender floated by the respondents No.1 – Jharkhand Bijli Vitaran Nigam Ltd. (JBVNL) Petitioner had participated and had submitted its bid, but the technical bid of the petitioner was rejected as the certificate of experience issued by “UPPCL”, where the petitioner had worked as a member of the consortium, was not considered by the respondents, thus, making the petitioner ineligible. It is the contention of the petitioner that while considering the technical bid, points were allotted under different heads including that for work experience, but since the work experience of the petitioner while working for a project under “UPPCL” was not considered, no points were allotted to the petitioner, which led to illegal disqualification of the petitioner in the technical bid. Counsel for the petitioner further submitted that if the required points would have been awarded to the petitioner, the petitioner would have qualified and would have been declared as technically qualified. Counsel for the petitioner further submitted that if the required points would have been awarded to the petitioner, the petitioner would have qualified and would have been declared as technically qualified. He submits that once the petitioner becomes technically qualified, petitioner’s financial bid would have been opened, which would have resulted in work being allotted in favour of the petitioner as the financial bid of the petitioner is much lesser than the successful candidate, who has been allotted the work. He submitted that the entire process adopted by the respondent is arbitrary, malafide, and only to oust the petitioner from the competition and to favour some other bidder, illegality has been committed. He submitted that the respondents have ignored the fact that admittedly the petitioner was a lead partner in the contract issued by “UPPCL”, thus, the entire credit of the work should have been given to the petitioner. 4. Learned counsel appearing on behalf of the respondent No.1-JBVNL submitted that in fact, after scrutinizing all the documents, petitioner’s technical bid was rejected. Though as claimed by the petitioner, the petitioner was a member of the consortium, which had undertaken the work under “UPPCL”, still inspite of repeated requests, petitioner did not furnish the desired document to suggest as to what was the role of the petitioner in the said work. He submitted that in fact the entire work was done by the other firm, which was the other member of the consortium and not by the petitioner. Since no documents were submitted by the petitioner, which could have satisfied the respondents, the alleged experience of the petitioner under “UPPCL” was not considered. He also submitted that in fact the other firm (respondent No.2), which was the other member of the consortium, in relation to the work under “UPPCL”, also participated in this contract. While considering the case of the said other firm also, the work experience in “UPPCL” was not considered and no point was given to the said other firm also. Since no points for experience for working with UPPCL was either given to the petitioner or the other firm, no bias can be alleged against the respondents. He lastly submits that while deciding this issue, the High Court, sitting in writ jurisdiction under Article 226 of the Constitution of India cannot act as an appellate authority. Since no points for experience for working with UPPCL was either given to the petitioner or the other firm, no bias can be alleged against the respondents. He lastly submits that while deciding this issue, the High Court, sitting in writ jurisdiction under Article 226 of the Constitution of India cannot act as an appellate authority. Scope of the High Court is very limited and discretion has to be left open to the authority awarding the contract. Thus, the respondents prayed for dismissing this writ petition. 5. The respondent No.2, who is one of the consortium partner of the petitioner in the tender in respect of “UPPCL”, argued that the petitioner and the respondent No.2 were part of the consortium and the entire core services were supplied by the respondent No.2 and the petitioner supplied only the ancillary services. The scope of the work in “UPPCL” by each of the partners of the consortium was well defined. Considering the scope, the revenue was also shared in the ratio of 20:80 between the petitioner and the respondent No.2, where the respondent No.2 got 80% of the entire revenue. This was at the initial stage, but later on even the ancillary work was also taken over by the respondent No.2 for which the revenue share was re-arranged as 10:90 between the petitioner and the respondent No.2. Counsel for the respondent No.2 submitted that the respondent No.2 has been made a necessary party though no relief has been sought against the respondent No.2. 6. The scope of interference by the High Court while exercising writ jurisdiction under Article 226 of the Constitution of India in respect of tender matters is limited. The Hon’ble Supreme Court in the case of Siemens Aktiengeselischaft and Siemens Limited versus Delhi Metro Rail Corporation Limited and Others reported in (2014) 11 SCC 288 , at paragraph 23 thereof, has held as under:- 23. There is no gainsaying that in any challenge to the award of contract before the High Court and so also before this Court what is to be examined is the legality and regularity of the process leading to award of contract. What the Court has to constantly keep in mind is that it does not sit in appeal over the soundness of the decision. The Court can only examine whether the decision-making process was fair, reasonable and transparent. What the Court has to constantly keep in mind is that it does not sit in appeal over the soundness of the decision. The Court can only examine whether the decision-making process was fair, reasonable and transparent. In cases involving award of contracts, the Court ought to exercise judicial restraint where the decision is bona fide with no perceptible injury to public interest. 7. Further, in the case of State of Punjab Versus Mehar Din reported in (2022) 5 SCC 648 at paragraph 27 thereof the Hon’ble Supreme Court, has held as under : 27. This being a settled law that the highest bidder has no vested right to have the auction concluded in his favour and in the given circumstances under the limited scope of judicial review under Article 226 of the Constitution, the High Court was not supposed to interfere in the opinion of the executive who were dealing on the subject, unless the decision is totally arbitrary or unreasonable, and it was not open for the High Court to sit like a court of appeal over the decision of the competent authority and particularly in the matters where the authority competent of floating the tender is the best judge of its requirements, therefore, the interference otherwise has to be very minimal. 8. Further, in the case of N.G. Projects Limited Versus Vinod Kumar Jain & Others, reported in (2022) 6 SCC 127 at paragraph 23 thereof the Hon’ble Supreme Court has held as under : 23. In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work. 9. Considering the observations, guidelines and dictates of the Hon’ble Supreme Court through the aforesaid decisions, we have to decide as to whether there is any illegality, irregularity, arbitrariness or mala fide in the process adopted by the respondents. 10. An e-tender was issued by the respondent-JBVNL inviting bids for “IT Hardware and Software Upgradation (billing and other application) complete turnkey installation (Supply, Installation, Commissioning, Customization and Integration of Unified Metering, Billing, Collection (MBC), Customer Information System (CIS) and Meter Data Management System (MDMS) on Cloud”. Petitioner participated in the said tender and furnished documents showing its work experience. Petitioner submitted certificates, letter of intent and agreement issued by “UPPCL” on behalf of its four DISCOMS, to show that the petitioner had sufficient work experience to participate in the instant tender. Petitioner claims that the petitioner had produced all the documents, which were necessary for considering its eligibility and considering its case but the respondents starting seeking clarifications and the scope of work and also sought information regarding roles and responsibilities of the petitioner and the respondent No.2 in the project of “UPPCL”. Ultimately, while considering the instant tender, no weightage was given to the petitioner for the work done by it for “UPPCL”. As weightage was not given, petitioner could not qualify in the technical bid and petitioner’s bid was rejected. 11. As per Clause 35.4 of the instructions to the bidders, the financial proposal for only those bidders had to be opened who had secured marks greater than or equal to 2.4 points. As weightage was not given, petitioner could not qualify in the technical bid and petitioner’s bid was rejected. 11. As per Clause 35.4 of the instructions to the bidders, the financial proposal for only those bidders had to be opened who had secured marks greater than or equal to 2.4 points. Petitioner secured less than 2.4 points. Petitioner claims that if the experience in respect of work under “UPPCL” was considered and points were given for that, petitioner could have easily cross the threshold. In this case, admittedly, no marks were given to the petitioner for the work done under “UPPCL”. 12. The only issue, thus, falls for consideration here is whether by not giving any points to the petitioner for the work under “UPPCL”, respondents have committed any illegality or not. Whether to give points for the work done in “UPPCL” or not falls within the domain of the authority who have floated the tender. They are the best judge, considering the nature of work which the petitioner has done under “UPPCL”, either to give credit for the same or not. Admittedly, the petitioner and the respondent No.2 formed a Joint Venture / Consortium for a tender in “UPPCL”. It is evident from the supplementary affidavit dated 14.06.2023 filed by the respondent No.2 that the respondent No.2 and the petitioner had entered into a teaming agreement for performing the project under “UPPCL”. Petitioner’s scope and scope of respondent No.2 was well defined, which is as under:- Petitioner’s scope Infinite Computer Solutions (India) Limited 2nd Respondent’s scope Fluent Grid Limited Program Liasoning/management/ governance/ reviews Co-ordination with consortium partners & OEMs Development of a mobile APP for consumers, and MIS Supply of mPower web based billing software Interface and coordination with deud infrastructure, network band with service providers. Solution implementation Post implementation maintenance. 13. Thus, the work, which was supposed to be done by the petitioner in the said contract under “UPPCL” was Program Liasoning/management/ governance/ reviews; Co-ordination with consortium partners & OEMs and Development of a mobile APP for consumers and MIS. The core work, definitely, was to be performed by the respondent No.2 and not the petitioner. Admittedly, when the agreement was entered by the petitioner and the respondent No.2, the profit sharing between the petitioner and the respondent No.2 was apportioned as 20:80. The core work, definitely, was to be performed by the respondent No.2 and not the petitioner. Admittedly, when the agreement was entered by the petitioner and the respondent No.2, the profit sharing between the petitioner and the respondent No.2 was apportioned as 20:80. Subsequently, one of the main work of the petitioner, i.e., Mobile App, MIS and Project management/ governance/ liasoning activities were also fully taken over by the respondent No.2 vide Adendum Agreement dated 01.11.2018. The revenue sharing ratio of the petitioner was also reduced and the new arrangement for apportionment was 10:90 (10 for the petitioner and 90 for the respondent No.2). 14. From the aforesaid facts, it is quite clear that the petitioner’s contribution in the “UPPCL” contract was next to negligible. Even if the petitioner was shown to be lead partner, merely using the term “lead partner” will not benefit the petitioner as major portion of the work and the work which is important for performing the contract for “UPPCL” was executed by the respondent No.2. Even the major portion of the revenue was taken by the respondent No.2, which is 90% and only 10% was left to the petitioner. This clearly suggests that the petitioner was merely a name lender and was looking after only the liasoning part and management. In the instant tender, the work is for “IT Hardware and Software Upgradation (billing and other application) complete turnkey installation (Supply, Installation, Commissioning, Customization and Integration of Unified Metering, Billing, Collection (MBC), Customer Information System (CIS) and Meter Data Management System (MDMS) on Cloud”, where admittedly the petitioner had got no experience in the contract for “UPPCL”. Thus, the respondents have correctly not given any weightage to the work which the petitioner had performed under “UPPCL”. We find no error in decision making process by the respondents. This Court cannot sit in appeal over the decision of the competent authority as they are the best judge and in this case we find that there is no illegality, irregularity, arbitrariness or malafide on the part of the respondents in not considering the alleged experience of the petitioner under “UPPCL”. 15. In view of what has been discussed and held above, we find no merit in this writ petition. This writ petition is, accordingly, dismissed. 16. Pending interlocutory applications, if any, stand disposed of. There shall be no orders as to costs. 15. In view of what has been discussed and held above, we find no merit in this writ petition. This writ petition is, accordingly, dismissed. 16. Pending interlocutory applications, if any, stand disposed of. There shall be no orders as to costs. I agree.- Sanjaya Kumar Mishra, C.J.