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2024 DIGILAW 144 (KER)

Neev Energy LLP v. Cochin Smart Mission Limited

2024-02-05

DEVAN RAMACHANDRAN

body2024
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. Kochi, the beautiful queen of the Arabian Sea, falls into darkness in some of its parts, on the sun setting on its western horizon, on account of lack of proper public lighting; which its Corporation has been long called upon to be corrected and rectified, even by this Court, in several orders and judgments. 2. The Ministry of Housing and Urban Affairs, Government of India, propounded the Smart City Mission, identifying several cities across the country; and fortunately, Trivandrum and Kochi are among them in our State. 3. Thus, was the parturition of the Cochin Smart Mission Limited (CSML) - which is conceded to be a Public Limited Company under the Companies Act, 2013 - designed as a Special Purpose Vehicle, under the aegis of the Government of Kerala and the Kochi Municipal Corporation, funded by the aforementioned Smart City Mission. 4. Without further ado, it transpires that the CSML proposed Smart LED Street lighting in the city; and published Ext.P13 Notice Inviting Tenders (NIT), for “Pan City Smart LED Street Lights in Kochi Corporation under Smart Cities Mission, Kochi (Third Call).” 5. The petitioner, the 2nd respondent and another company, are admitted to have responded to the afore notification, furnishing their tenders in two covers - one containing the “Technical Bid” and the other “Financial Bid” as stipulated in the NIT. 6. The petitioner, which is stated to be a Limited Liability Partnership, alleges that, even though their documents in support of their Technical Bid was evaluated by the competent authority of the CSML and found to wholly subscribe to the requirements in the NIT, they were subsequently found disqualified by its Project Consultant, by name, KIISCON Private Limited; which was then intimated to them by the former, through their letter dated 30.10.2023 - a copy of which has been produced by the CSML, along with their counter affidavit and marked as Ext.R1(a). 7. The petitioner asserts that the reasons cited by the CSML, to disqualify them, are untenable and factually incredulous; and that this has been done solely to aid the 2nd respondent - which, by the factum of the disqualification of the other tenders, stood to be the only qualified one, thus to move on to the next stage, namely, the valuation of the Financial Bids. They explain that this was managed with Ext.R1(a) recommendations of the Project Consultant, being accepted by the CSML - thus they being disqualified; resultantly paving way for the 2nd respondent alone to be in the zone of consideration, leading to Ext.R1(d) letter of acceptance dated 01.11.2023 being issued in their favour, followed by Ext.R2(1) agreement dated 04.11.2023. 8. The petitioner thus prays that the Email dated 01.11.2023, sent to them by the CSML, rejecting their Technical Bid be quashed; and they be ordered to accept the same, thus causing their Financial Bid to be also being evaluated and accepted, subject to credentials. 9. I have heard Sri. Joseph Kodianthara, learned Senior Counsel instructed by Sri. Issac Thomas appearing for the petitioner; Sri. Jaju Babu, learned Senior Counsel, instructed by Sri. M.U. Vijayalakshmi - learned Standing Counsel for the CSML and Sri. Santhosh Mathew - learned counsel for the 2nd respondent. 10. Sri. Joseph Kodianthara, learned Senior Counsel for the petitioner, relied upon several precedents - both of this Court and that of the Hon'ble Supreme Court - to argue that, when capriciousness and arbitrariness are writ large in the proceedings, it would be enjoined upon this Court to pierce the wheel of secrecy in the transacting proceedings and examine whether the award of contract was the result of fraud, mala-fides or nefarious intention, to favour the 2nd respondent; underpinned on perversity, irrationality and breach of essential tender conditions. 11. The learned Senior Counsel then pointed out that, though the NIT, in Clause 1.3.1 of Section 3 thereof - “Qualification Criteria” specified that the submission of the Audited Balance Sheets is mandatory for every tenderer, this has been calculatingly waived in the case of the 2nd respondent, whose bid was supported only by a “Financial Statement” certified by their Chartered Accountants. He argued that, when such a mandatory condition was deviated from, it can only be construed to have been intended to favour the 2nd respondent and to avoid proper consideration of their financial worth, through the relevant forensicly accepted criteria, particularly, under the rigour of Clause of 1.4.1 of the NIT, stipulates a minimum average annual turnover of Rs. 12 crores. 12 crores. He contended that when the CSML did not have the Audited Balance Sheet of the 2nd respondent for the last five financial years, as mandated in the NIT, evaluation of their average annual turnover to be Rs.12 crores, or any other figure, would be rendered impossible; and hence that their Technical Bid itself ought to have been rejected, without allowing them to proceed to the next stage, namely, Financial Bid evaluation. 12. Sri. Joseph Kodianthara argued that, the afore, coupled with the fact that his client was illegally disqualified in the technical stage citing specious reasons, would irrefutably render the scenario to be one where there was gross and manifest mala-fides and an attempt to favour the 2nd respondent for confutative reasons. He added that this is fortified by the fact that, even though the 2nd respondent submitted their bids “excluding the GST” as mandated in the Bill of Quantities (BOQ), they were later allowed to correct the same and to be thus awarded the contract, within the estimate originally proposed by the CSML, namely Rs. 40 crores. He explained that the factum of an estimate having been in the mind of the CSML is unmistakable from Clause 1.4.3 of Ext.P13, which specifies the said figure; which, according to him, is then made further luculent from Ext.R1(b) minutes of its Tender Evaluation Committee, in which, the Administrative and Technical Sanction estimates are fixed at such figure. He contended that, therefore, when the NIT makes it clear that only a “substantially responsive tender” could have been allowed to cross the first threshold of evaluation of the documents submitted, the action of the CSML, in allowing the 2nd respondent to march forward to the next stage, was in complete disregard to the imperatives of fairness, rectitude and integrity of the tendering processes. 13. Sri. Joseph Kodianthara thus prayed that the reliefs sought for in this writ petition be granted; reiterating that his client have pleaded and established that the reason stated against them, for the rejection of their technical bid, is factually untenable and therefore, guided by questionable cause. 14. Sri. Jaju Babu - learned Senior Counsel for the CSML, however, refuted the afore submissions of Sri. Joseph Kodianthara with equal vehemence, taking me extensively through the counter affidavits filed by his client on record. 14. Sri. Jaju Babu - learned Senior Counsel for the CSML, however, refuted the afore submissions of Sri. Joseph Kodianthara with equal vehemence, taking me extensively through the counter affidavits filed by his client on record. His primary argument was that, when the petitioner has been technically disqualified, they would obtain no locus to impel any further argument with respect to the financial qualifications of the 2nd respondent, asserting that, otherwise, it would be anathema to the well established forensic principles that govern the field. In substantiation of his argument that the petitioner was rightly found not technically qualified, Sri. Jaju Babu invited my attention to Ext.R1(a), wherein, he showed me that there were four reasons cited for such by the Technical Evaluation Committee; and that, at least two among them are expressly admitted by the latter. He argued that, when such admissions are available ex facie from their own pleadings, the petitioner cannot challenge their disqualification; and consequently, that they cannot be permitted to enter into an experimental and adventuristic litigative attempt, in challenging the award of tender to the 2nd respondent - which, he vehemently asserted, satisfied and confirmed to every imperative and essential requirement under the NIT. 15. Sri. Jaju Babu - thereafter, answered the contentions of Sri. Joseph Kodianthara, learned Senior Counsel, on the CSML allowing the 2nd respondent to submit their Financial Statement in lieu of their Audited Balance Sheet, saying that, this was permitted by the NIT itself, as is evident from Clause 1.3.1 thereof. He showed me that, though the said clause mandates the submission of Audited Balance Sheet, it carves out an exception, namely that, where it is not required by law to be settled, Financial Statement be submitted. 16. Sri. Jaju Babu, then showed me - taking me through the various dates and the chronology of the events leading to the grant of tender - that, the NIT was published on 25.08.2023 and that the last date for acceptance of tender was fixed as being 01.09.2023. 16. Sri. Jaju Babu, then showed me - taking me through the various dates and the chronology of the events leading to the grant of tender - that, the NIT was published on 25.08.2023 and that the last date for acceptance of tender was fixed as being 01.09.2023. He explained that, going by the Income Tax Act, 2023 - which is the one relevant to the assessment year - in the case of companies like the petitioner, or the 2nd respondent, they were expected and legally required to file their Audited Balance Sheet only by the end of November; and therefore, that it was impermissible for his client to insist on the tenderers producing such, even on 23.09.2023. He added that, of course, if any tenderer had completed their statutory Audit by them, it was upto them to produce the same; but that the mere non-production of it, could not have been good ground available to his client, to disqualify any bid. He predicated that, in such scenario, his client could have only gone by the Historical Financial Performance/Financial Statement of any tenderer, who had not completed their statutory Audit by them, to be certified by a competent Chartered Accountant; and that the 2nd respondent did so, producing Ext.P18, wherein, their Chartered Accountant has certified that they had verified their books of accounts and other relevant records, based on which, the data therein were made available. 17. Sri. Jaju Babu thereafter submitted, that, though, as per the NIT, every bid was to be made in terms of the Bill of Quantities (BOQ), namely Ext.P24 - which stipulates bidders to quote their rates exclusive of the GST; after the Financial Bid of the 2nd respondent was opened and noticing that their rates where on the higher side than what was expected by the CSML, negotiation was entered into by the Technical Evaluation Committee, resultant to which, the former agreed that the figures quoted by them can be construed to include GST, thus averting any additional burden on the latter. He argued that such a procedure is not proscribed by the NIT and that when the 2nd respondent was the only bidder available, the reduction of their bid amount - contrary to the assertion of the petitioner - would have given them no benefit at all, but would sub serve public interest. He argued that such a procedure is not proscribed by the NIT and that when the 2nd respondent was the only bidder available, the reduction of their bid amount - contrary to the assertion of the petitioner - would have given them no benefit at all, but would sub serve public interest. He contented that the argument of the petitioner, that the entire process has been designed to help the 2nd respondent, would stand wholly belied by the fact that a negotiation of the afore nature was entered into - though the 2nd respondent being under no obligation to have agreed to reduction of their bids in any manner - thus leading to their tender being accepted to a much lessor figure, than that was originally quoted by them. 18. The learned Senior Counsel then maintained that, this was not a case of correction of bids by the 2nd respondent, as has been alleged by the petitioner, but where the Technical Evaluation Committee thought it better to negotiate with the said respondent and to persuade them to reduce their bid; but, which he explained, was not with reference to any estimate that was earlier notified, or made known to the bidders, but solely to bring it within such a figure, which the Evaluation Committee had fixed to be the apposite for the project, as is evident from Ext.R1(b) Minutes settled by them. He asserted that this minutes were not available in the public domain, or disclosed to any of the tenderers and that it was solely for the purpose of the Tender Evaluation Committee, to confine the Final Award to figures that were commensurate to the nature of the work, behooving the quality intended to be achieved. 19. Sri. Jaju Babu - learned Senior Counsel, then proceeded to say that this writ petition is not maintainable for another reason also because, the contract awarded to the 2nd respondent runs with a specified time frame of seven months from the date on which the agreement was entered into with them, namely with effect from 04.11.2023; and that, even as on 18.12.2023, more than Rs.12.5 crore worth work has been completed. He added, that, any delay in the project would be cataclysmic because: for one, the funds will lapse; and, for the second, the CSML itself would have its life only till 24.06.2024, unless it is extended by the Government of India. He added, that, any delay in the project would be cataclysmic because: for one, the funds will lapse; and, for the second, the CSML itself would have its life only till 24.06.2024, unless it is extended by the Government of India. He impressed upon me that the extension of life of CSML is a matter of chance, being subject to the discretion of the Government of India; and therefore, that it would operate against the interest of the city and its citizens, if the work under the contract is to be delayed in any manner whatsoever. He thus prayed that this writ petition be dismissed. 20. Sri. Jaju Babu concluded, impressing upon this Court the alleged experimental nature of this writ petition, arguing that this is manifest from the undeniable fact that the petitioner was never ready and equipped to provide the lighting solutions, as required in the NIT, which factum is confirmed by their own Email, dated 20.12.2023, produced as Ext.P14(a) by them themselves. He showed me that, even on that day, they unequivocally declared that, since the specifications contained therein is not what a “standard street lighting tender normally asked for” (sic), they will require at least two months time to “design develop and get the product certified” (sic). He argued that, therefore, for this reason also, the prayers in this writ petition becomes untenable. 21. Sri. Santhosh Mathew - learned counsel appearing for the 2nd respondent, adopted most of the submissions of Sri. Jaju Babu, as recorded above; and relied upon a host of judgments, to argue that, once a petitioner has been disqualified at the technical stage, they can claim no competence or locus to maintain this writ petition, challenging his clients’ credentials, which were found satisfied by the Expert Committee at the stage of the Financial Bid evaluation. He argued that, as limpid from the NIT, the tendering process postulates a “Two Cover System” involving a “Technical Bid” and a “Financial Bid” and that only those tenderers who qualifying the first round, would be allowed to move on to the next one and have their Financial Bids opened. He argued that, as limpid from the NIT, the tendering process postulates a “Two Cover System” involving a “Technical Bid” and a “Financial Bid” and that only those tenderers who qualifying the first round, would be allowed to move on to the next one and have their Financial Bids opened. He argued that since the Financial Bid of the petitioner has never been opened, on account of the factum of them having being disqualified at the Technical Bid stage, their contentions against his client’s financial credentials are artful and more an attempt to abuse the processes of law. He maintained that, when the petitioner themselves have virtually admitted in their counter pleadings, that the rejection of their Technical Bid was for valid reasons, any further attempt on their part to unsettle the contract, thus causing huge public loss, should not be permitted; and asserted that his client is supported in this by the various precedents that cover the field. 22. The syllogistical arguments of the learned Senior Counsel and Counsel for the parties being so recorded, it cannot be lost sight of, that the governing principles in assessment of controversies concerning contracts and its Award have been declared through several judgments by the Hon’ble Supreme Court, as also by this Court; and hence, normally, would require no restatement - they being very well entrenched and settled over time. 23. Among the binding precedents, the most relevant to this case is certainly the judgment of the Hon’ble Supreme Court in Tata Cellular vs. Union of India, (1994) 6 SCC 651 , in which, it is declared apodictically that Courts cannot sit as Courts of appeal over the process of tender, but can only review the manner in which the decision was made. This judgment has its underpinning on the classic doctrine in Administrative Law that, Courts do not generally review decisions, but only the decision making process. The judgment also renders it luculent that the Invitation to Tender cannot be , normally, open to judicial scrutiny because, it is in the realm of contract and that, usually, the decision to accept or award the contract is reached by a process of negotiation, through several tiers. The judgment also renders it luculent that the Invitation to Tender cannot be , normally, open to judicial scrutiny because, it is in the realm of contract and that, usually, the decision to accept or award the contract is reached by a process of negotiation, through several tiers. The Hon’ble Court also cautioned that, since such decisions are qualitatively settled by experts, the employer must have necessary freedom - which it lucidly called a “fair play of the joints” emphasising that it is a necessary concomitant for an Administrative Body functioning in the administrative sphere. Of course, the judgment then specifies the well recognized caveat that, when a decision is found to be violative of the Wednesbury Principles of reasonableness; or is vitiated by arbitrariness, bias; or actuated by mala-fides, then Courts would not be barricaded from entering into its merits and critically evaluating the manner in which it has been settled. 24. The afore principles have, in fact, been followed, without any deviation, by the Hon’ble Supreme Court in several subsequent judgments, including Central Coalfields Ltd. vs. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 , in which, it was declared that the party issuing the tender (employer) “has the right to punctiliously and rigidly” enforce the terms of the contract; and that Courts would be loath to enter into evaluation of such actions from a legal perspective. In fact, this judgment is also a precedent for the proposition that the employer can deviate from the terms and conditions of the NIT, if the changes effect all intending applicants alike and were not objectionable; thereby, to mean that any deviation which does not effect the “level playing field” and does not result in arbitrariness or discrimination, would not normally persuade Courts to intervene or interdict. 25. It would thus be unnecessary to delve into the large number of other judgments which govern the field because, the very same principles afore, have been reiterated and reaffirmed in them. However, for the purpose of completeness, I cite them for reference, as being Municipal Corporation, Ujjain and Another vs. BVG India Limited and Others, (2018) 5 SCC 462 , Tata Motors Limited. vs. Brihan Mumbai Electric Supply and Transport Undertaking (BEST) and Others, AIR 2023 SC 2717 , finally resting in the latest judgment in Jaipur Vidyut Vitran Nigam Ltd. vs. Mb Power (Madhya Pradesh) Limited, 2024 (1) Law (SC) 22. 26. vs. Brihan Mumbai Electric Supply and Transport Undertaking (BEST) and Others, AIR 2023 SC 2717 , finally resting in the latest judgment in Jaipur Vidyut Vitran Nigam Ltd. vs. Mb Power (Madhya Pradesh) Limited, 2024 (1) Law (SC) 22. 26. The time tested and indellibly sacrosanct principles have also been adopted and affirmed by this Court in various judgments; and Sri. Santhosh Mathew cited Laxmi Civil Engineering Services Pvt. Ltd. vs. Kerala Water Authority, 2023 (5) KHC 560 , Flemingo Travel Retail Limited vs. Kannur International Air Port Limited, 2020 KHC Online 3118 and Flemingo Travel Retail Limited vs. Kannur International Air Port Limited, 2020 (3) KHC 729 , in support of his contentions. 27. Undoubtedly, the leitmotif of the afore precedential declarations, is that the employer must obtain every liberty available in law to deal with the tender processes, as long as there is no capriciousness, arbitrariness, mala-fides or such other vitiating factors impelled, projected and demonstrated; though, in exceptional cases - in which event alone - this Court can step in, to exercise discretion under Article 226 of the Constitution of India. 28. Coming to the facts of the case at hand, the primary argument of the petitioner is that the CSML has violated the terms of the NIT, in allowing the 2nd respondent to participate in the tender processes, even though they did not support their bid with their Audited Balance Sheet for five years; with a corollary imputation that, in the absence of such, the un-expendable minimum average annual turnover of Rs.12 crores, could not have been verified or established. 29. As I have recorded above, Sri. Joseph Kodianthara - learned Senior Counsel, vehemently argued that, for the sole reason above, the 2nd respondent could not have been even found to have been qualified, much less for the CSML to have allowed their financial evaluation in the second stage; which, then is exacerbated by the fact that they were allowed to rectify their bid at that stage, though it was strictly prohibited by the very terms of the NIT, which the CSML asserts to have acted under. 30. But, before I deal with the above, I deem it necessary that I first answer the submissions of Sri. Jaju Babu, learned Senior Counsel for CSML and Sri. 30. But, before I deal with the above, I deem it necessary that I first answer the submissions of Sri. Jaju Babu, learned Senior Counsel for CSML and Sri. Santhosh Mathew - learned counsel for the 2nd respondent, that, once the petitioner was technically disqualified, their locus to impel a challenge against the financial credentials of the petitioner stood eroded; and this essentially depends upon the pleadings and the admitted documents on record. 31. There is little doubt - as is admitted - that the petitioner, along with 2nd respondent and another company, was found qualified at the inception, namely after preliminary evaluation; and this is indubitable from Ext.R1(b), produced by the CSML itself, along with their counter affidavit. However, it transpires that the bids were then more carefully scrutinized by the Tender Evaluation Committee; and this led to a recommendation being made by them, to reject the tender of the petitioner, for reasons as are available in internal page 16 of Ext.R1(a); which thereafter led to Ext.P1. 32. Of course, at the time when the petitioner filed this writ petition, they were possibly not aware of the specific reasons why their Technical Bid stood rejected; but they, admittedly, came to be aware of the same when Ext.R1(a) was produced by the CSML, which records the following: 1. As per the technical specification, the lenses should be mechanically fixed and not to be glue pasted to ensure that the lenses are intact in its seatings on long-run without dislocated during high-temperature conditions. However, it is noted that the secondary lenses are glue pasted in the samples and also noticed that some of them are already dislocated. 2. As per the BOQ & RFP, additional Surge Protection Device of 10kV must be available within the luminaire housing which is a critical technical requirement to avoid failure of drivers and for easy replacements. But 10kV additional SPDs are not available in any of the submitted samples. It also violates the self-declaration submitted by the bidder in this regard. 3. As per the requirements, luminaire housing shall be made up of corrosion free High Pressure Aluminum die cast thus conforming the luminaire to minimum IP-66 for all wattages and safety as per IEC 60598/IS 10322. (Only single housing fixtures allowed). It also violates the self-declaration submitted by the bidder in this regard. 3. As per the requirements, luminaire housing shall be made up of corrosion free High Pressure Aluminum die cast thus conforming the luminaire to minimum IP-66 for all wattages and safety as per IEC 60598/IS 10322. (Only single housing fixtures allowed). The lower rated LED housings (20W&36W) of the bidder are having 3 pieces, which is not complying to the RFP requirements and not conforming to the self-declaration submitted. 4. The bidder has not submitted driver data sheets or BIS Certifications of 110 W and 220W categories but used combinations of lower wattage drivers in samples instead of single drivers (2 drivers in 110W and 4 drivers in 220W). This indicates non-availability of single drivers for higher ratings, which is qualitatively much inferior to the usage of single drivers. Hence it may be concluded that the sample submitted by the Bidder as per the eligibility criteria is not conforming to the Technical Specifications as mentioned in RFP and the self-declaration provided by the same bidder, which has major qualitative and financial impact on long-run (Refer Annexure A, B & C) 33. Pertinently, to this, a reply affidavit, dated 31.12.2023 has been filed by the petitioner, wherein, in paragraphs 24 to 28, the following have been averred: 24. The very first observation given by KIFCON on the samples submitted by the Petitioner is “the secondary lenses are glue pasted in the samples and also noticed that some of them are already dislocated.” This observation itself shows the mala-fide of the 1st Respondent/CMSL. As stated above, an examination of Section III also includes an examination of Section V. Further, the samples are to be submitted by the bidders under Section III clause 1.1.10 which states bidders must submit one sample of each type of Luminaire. Thus, an evaluation of Section III, would be incomplete without an evaluation of Section V. Accordingly, going by the terms of the tender itself, the 1st Respondent/ CSML could not have qualified the Petitioner under Section III and Section V on 10.10.2023 and thereafter in its second round of evaluation of the technical bid, if the samples submitted by the Petitioner were dislocated. Notwithstanding the aforesaid, it is submitted that the secondary lenses of the Petitioner are mechanically fixed through a push fit mechanism in the slots and does not rely on any glue paste for fixing it which is proved by the pictures of the samples submitted by the Petitioner. No glue paste has ever been used in the Petitioner's samples. Such use would have been revealed even on a cursory glance. The fact that the Petitioner was in the first instance technically qualified will also clearly show this. The samples submitted by the Petitioner along with its technical bid are produced herewith and marked as Exhibit P-23. 25. The second observation by KIFCON is that as per the BOQ & Call, the Petitioner has not provided additional Surge Protection Device of the Thing 10kV which is to be available within the luminaire housing in the samples submitted which is critical technical requirement to avoid failure of drivers and for easy replacements. The same has also been alleged to violate the undertaking given by the petitioner. 26. Is important to note that of writ petition there is a separate section which details the specifications of LED streetlights which consists of its components which are LED 6(c), Luminary 6(d), 6(e), and 6(f). It is important to note that Surge Protector Device is separately covered @ Page 790 of writ petition) clearly indicating that this is a device which is not an integral part of the LED streetlight/luminaire. Further, it is also important to note that the Third Call only required sample of the luminaire to be submitted (@ Page 660 of Third Call). Moreover, the words “additional” “separately installed” and “within” are not clearly defined and apparently incoherent However, the Petitioner confirms that there is a separate installation of surge protection device which is in addition to the internal surge protection provided in the river required specifications. This “additional” surge protection is typically “separately installed” right adjacent to the LED street lights during installation. And therefore, the samples submitted had only “The LED street light samples as required by 1st Respondent/CSML. A copy of the BOQ Issued alongwith the Third Call by the 1st Respondent are produced herewith and marked as Exhibit P-24. 27. This “additional” surge protection is typically “separately installed” right adjacent to the LED street lights during installation. And therefore, the samples submitted had only “The LED street light samples as required by 1st Respondent/CSML. A copy of the BOQ Issued alongwith the Third Call by the 1st Respondent are produced herewith and marked as Exhibit P-24. 27. The third observation by KIFCON is that as per the requirements, luminaire housing shall be made up of corrosion free High Pressure Aluminium die cast thus, conforming the luminaire to minimum IP-66 for all wattages and safety as per IEC 60598/15 10322, (Only single housing fixtures allowed). However, the lower rated LED housings (20W & 36W) submitted by Petitioner of the bidder have 3 pieces, which is not complying to the requirements stated under the Third Call and the declaration submitted to that effect. The Third Call (@ Page 288) provides a separate specification section dedicated to housing in Clause 6 (f) and no-where is the term “single” mentioned. If such qualification was material enough, then such qualification ought to have been clearly mentioned in this clause which is dedicated to the specification for the housing. There are various models and designs of LED street lights available in the market and therefore it is important to provide a definition through text and illustration. However, nowhere in the Third Call is the term single- housing fixture defined nor illustrated without which it becomes very subjective of What comprises of a luminaire housing. However, the Petitioner reiterates that the housing used in the samples provided fully conforms to the specifications of the 47/24 housing as per Clause 6 (f) and as provided in the self-declaration as required in the tender conditions. 28. The fourth and last observation by KIFCON is that the bidder has not submitted driver data sheets or BIS Certifications of 110 W and 220W categories but used combinations of lower wattage drivers in samples instead of single drivers (2 drivers in 110W and 4 drivers in 220W) and thus, indicates non availability of single drivers for higher ratings, which is qualitatively much inferior to the usage of single drivers. This observation of KIFCON is the most insidious as this not even a requirement under the Third Call. Further, nowhere under the Third Call, the requirement mentioned. This observation of KIFCON is the most insidious as this not even a requirement under the Third Call. Further, nowhere under the Third Call, the requirement mentioned. The of using single drivers for any of the LED light wattages is Petitioner using multiple drivers for a high rating LED streetlight is not a violation of any specification/requirement and Respondent No. 1 has created an imaginary qualification as the time of evaluation. 34. It is crystally perspicuous from the afore extracted averments that, though the petitioner affirmatively discounts the first reason for their disqualification cited by the CSML, asserting that the samples produced by them specifically answered the mandated quality requirements; when it comes to the 2nd and 3rd objections, they appear to be contesting the terms of the NIT itself, saying that they are not fully comprehendable, or clearly defined. 35. It is here that the submissions of Sri. Jaju Babu, learned Senior Counsel - that, even before they had submitted their bids - the petitioner had addressed the CSML, through Ext.P14(a), to the effect that they will require a minimum of two months time to “design develop and get the product certified” to conform to the product requirements in the NIT - assumes significance. 36. There can be no question about it that, the petitioner responded to the CSML, through Ext.R1(a), being fully aware of the specifications of the lighting solutions, for which were to bid for, though the intercacies of the same have not been discussed therein. They, however, say that, to achieve the lumen efficiency stipulated; and to obtain the certification as mentioned in the NIT, they “assume” that a minimum of two months time will be necessary. However, interestingly, in the said letter, the petitioner raise no objection that the terms of the NIT are vague or uncertain; but, contrary to this, in the reply affidavit filed by them, as extracted above, they contend that, at least with respect to the “surge protection” as also the fixture itself, the words “single” “additional” “separately installed” and “within” are not properly defined; and hence that the product can have multiple components, to be installed together on the same lamp post. This is ineluctable from their further averment that, even though the NIT says that an additional self protection should be separately installed within, it then provides that it should be “within each fixture.” They then point out that, as regards the “luminair housing” the NIT specifies that only single housing fixtures will be allowed; and that all this taken together, creates a large amount of confusion, which, even now stands unresolved. 37. However, it must be borne in mind that the NIT, admittedly, contains the unambiguous specification for the LED, the luminary, the driver and the housing; and in such, it uses the word “enclosed inside the frame of the light fixtures” (sic). 38. I must record at this juncture that, in fact, the CSML had volunteered to bring the samples provided by the petitioner before this Court, which was done on 12/01/24 - when this matter was earlier considered; but, as is well recognised, it would be impossible for this Court to delve into any worthwhile examination of the same; or to hold either in favour, or against the rival contentions, since, to do so, would certainly amount to transgressing the perimeter of the jurisdiction of this Court, in matters relating to contracts. I, therefore, do not propose to be influenced or trammeled by any such event which happened in this Court, but to rely upon the pleadings, and the rival submissions of the parties. 39. As I have already said above, when the reply affidavit filed by the petitioner hinges on their argument that the NIT itself is vague and uncertain; thus giving rise to the justified presumption that they themselves were aware that their samples may not conform to the specifications, as are notified; certainly, the respondents are on terra firma in arguing that this Court cannot go on to examine the correctness of the components of the tender processes, particularly qua the financial credentials of the 2nd respondent, especially at the instance of the petitioner. 40. That said, I am fully cognizant, as indited earlier, that the argument of the petitioner - as made by their learned Senior Counsel, Sri. Joseph Kodianthara - is that, if they were technically disqualified, so should have been the 2nd respondent, for the reason that they did not even have their Audited Balance Sheet, as required under the NIT. 41. That said, I am fully cognizant, as indited earlier, that the argument of the petitioner - as made by their learned Senior Counsel, Sri. Joseph Kodianthara - is that, if they were technically disqualified, so should have been the 2nd respondent, for the reason that they did not even have their Audited Balance Sheet, as required under the NIT. 41. As recorded ut supra, the explanation of the CSML, which is the propounder of the tender process, is that, what was impossible to be performed, could not have been insisted by them; and that it is, therefore, that the Financial Statement of the 2nd respondent, certified by their Chartered Accountant, was relied upon. 42. The answer to the afore singular disputation would hinge on the time lines involved in the process; particularly that the last date of the acceptance of the tender being, concededly, 23.09.2023. The explanation of the CSML surely holds muster because, going by the Income Tax Act of the relevant assessment year, the Balance Sheets of any company needed to have been audited and filed only by the end of November of that year, which was the statutorily specified date. This, coupled with the uncontroverted assertion that the CSML faces the prospect of being shut down on 24.06.2024, certainly clothes justification to them in continuing with the tender process even before the above mentioned deadline; more so, when a minimum of seven months time is required to complete the work. 43. Pertinently, if the CSML were to insist that all tenderers should produce their Audited Balance Sheet, notwithstanding that the fiscal law did not require them to have it settled within the last date of submission of bids mentioned therein, it could have lead to being argued that this was an impossible condition, statutorily unsupported; thus with the possibility of litigation at the hands of those who were forced to it, including the 2nd respondent. 44. That being so concluded, coming to the stage of the evaluation of the Financial Bid of the 2nd respondent, the argument of the petitioner is that the former was allowed to modify their bid, which is contrary to the terms of the NIT. 44. That being so concluded, coming to the stage of the evaluation of the Financial Bid of the 2nd respondent, the argument of the petitioner is that the former was allowed to modify their bid, which is contrary to the terms of the NIT. Prima facie, but without much doubt, the bid originally submitted by the 2nd respondent was allowed to be either corrected or modified by them, which is evident from Ext.R1(c) recommendations made by the Project Management Consultant to the ‘CSML’. However, the question is whether this has, in any manner, affected the integrity and fairness of the procedure. 45. Here, the argument of the petitioner, that the “rules of the game was changed” to suit the 2nd respondent porpoises various other corollary questions because, one would be genuinely justified in asking, what benefit would the 2nd respondent have obtained in being forced to reduce the quote made by them - it being taken that they had made their original quote excluding the GST, as was required under the ‘BOQ’ produced on record by the petitioner, along with its rejoinder, as Ext.P24. 46. Crucially, the contention of Sri. Joseph Kudianthara, learned Senior Counsel - that the ‘BOQ’ specifically required the tenderers to quote their figures exclusive of GST - being without any doubt or contest, the CSML would have, normally, only accepted the figures quoted by the 2nd respondent. However, they appear to have sought a clarification from them, consequent to which, they conceded that the rates quoted by them can be taken to be inclusive of the GST, effectively reducing it to a much lesser figure than they had originally proposed. 47. Continuing on this issue, the argument of Sri. Joseph Kodianthara, that this procedure is in violation of Clause 31 of Section I - “Instructions to Bidders” in Ext.P3-NIT, will also require to be examined. Interestingly, Clause 31 (2) of the afore Clause provides that, if a bid is substantially responsive, the employer may request necessary information or documentation, to rectify “non-material and non conformities” except any related to any aspect of the price of the bid. This is made furthermore clear by stipulating that the failure of the bidder to comply with any request, except relating to the price of bid, may result in its rejection. 48. This is made furthermore clear by stipulating that the failure of the bidder to comply with any request, except relating to the price of bid, may result in its rejection. 48. As far as the facts of this case is concerned, the 2nd respondent made their bid in the format of the BOQ, which can only justify a presumption that the figures quoted by them are excluding the GST. The requisition to them by the ‘CSML’ for any explanation with respect to this, stood barricaded by Clause 31.2 of Section 1 of Ext.P13; but it appears that they nevertheless, called for such, which the 2nd respondent could have surely refused to acede to. They, however, are seen to have responded to it, agreeing that their bids can be construed to be inclusive of the GST; and to have then agreed to enter into a contract for a much lesser figure, than which was originally quoted by them. 49. When it is admitted that the 2nd respondent was the sole available bidder at that stage, I cannot find any justification for the petitioner contending that this amounted to a violation of the NIT, or to being vitiated by perversity or arbitrariness; more so when, they were already excluded from the zone of consideration at the Technical Bid stage itself. 50. The afore factual factors, coupled by the requirement for the work to be completed at the earliest, with the CSML facing the prospect of being phased out on 24.06.2024 looming in the horizon; juxtaposed by the conceded fact that the petitioner filed this writ petition only on 24.11.2023 - which was nearly 21 days after Ext.R2(1) Agreement had been entered into by the CSML with the 2nd respondent; and, then, more importantly, it being moved before this Court for admission only on 14.12.2023, persuades me to find against them, since any intervention at this stage, when nearly half of the work is stated to have been completed, can only cause and lead to great public detriment and loss to the citizenry. 51. Tata Cellular (supra), particularly paragraph 153 thereof, guides me to the afore conclusion and holdings, also adverting to the long distance of time after the contract had been awarded. 52. In the afore circumstances, this Court can only dismiss this writ petition; which I hereby do.