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2025 DIGILAW 2073 (KER)

Vasudevan. K. M v. Chief Engineer(Naval Works)

2025-07-28

SUSHRUT ARVIND DHARMADHIKARI, SYAM KUMAR V.M.

body2025
JUDGMENT : Syam Kumar V.M., J. This appeal is filed challenging the judgment dated 09.06.2025 of the learned Single Judge in W.P.(C) No.23477 of 2024. Appellant was the petitioner in the said Writ Petition. 2. Appellant is a C-class contractor, enlisted under the Chief Engineer, Southern Naval Command, Pune. He had participated in the tender invited by respondent No.1 in respect of a work titled “Completion of incomplete works for setting up single offices accommodation as a part of augmentation of infrastructure and facilities at INA, Ezhimala (phase II)”. The tender submitted by him was rejected vide Exhibit P9 stating that the number of enlisted contractors of eligible class are 8 and the bidder has not submitted required documents for upgradation to the eligible class i.e. A class. The appeal preferred by him before respondent No.2 was also rejected vide Exhibit P11 stating that he had failed to upload the requisite documents of upgradation criteria along with Cover 1 in terms of Note 2 of Appendix A to NIT as intimated by CE Zone. Aggrieved by such rejection of bid and dismissal of his appeal, the appellant had filed the W.P.(C) seeking the following reliefs: “(i) issue a writ of certiorari and to quash Exhibit P9 and Exhibit P11 ; (ii) to declare that the petitioner is eligible to submit his bid in response to Exhibit P6 re-tender issued pursuant to Exhibit P1 ; (iii) To issue a writ of mandamus or any other appropriate writ or orders directing the 1 st respondent to consider Exhibit P7 bid and open his price bid and award work to him if his is the lowest quoted bid; (iv) to direct the 2 nd respondent to allow Exhibit P10 appeal; (v) issue a writ of certiorari and to quash Exhibit P14 being illegal and arbitrary; (vi) to dispense with filing of the translation of vernacular documents ; and (vii) to grant such other and further reliefs as this Hon'ble Court may consider just and proper in the facts and circumstances of the case.” Subsequently, taking note of the fact that Ext.P13 communication was issued, which revoked the technical evaluation uploaded earlier for the tender and thus Ext.P9 communication became irrelevant and infructuous and that respondent No.1 had proceeded with technical bid evaluation produced as Exhibit P14, appellant amended the Writ Petition, incorporating pleadings and prayer, to set aside Exhibit P14. He had inter alia alleged that only two out of the 11 technical bids were admitted and 5 out of the same were rejected for purported failure to submit tender extension validity though they met the criteria. 3. The learned Single Judge after hearing both sides dismissed the petition, inter alia holding that, no illegality could be found in Exhibits P9 and P11 and that judicial review in the matter of tenders is confined to issues where any illegality, irrationality, or procedural impropriety is committed by the decision making authority and to prevent arbitrariness and favoritism. It was held that the rejection of appellant's tender vide Exhibit P9 was mainly for the reason that he had failed to produce documents to establish his eligibility under Class A. The learned Single Judge also noted that there were 8 class A contractors who submitted bids and the appellant's bid could not have been entertained as per the mandates laid down in the tender. The learned Single Judge reasoned that the writ court is not a court of appeal and it cannot review the decision of the tendering authority and could only look into the decision-making process. Holding that the Court cannot declare the appellant as the person qualified when the tendering authority itself had found him ineligible, the Writ Petition was dismissed. Aggrieved by the same, this appeal is preferred by the appellant. 4. Heard Sri.M.V.Amaresan, Advocate for the appellant, Sri.P.R.Ajith Kumar, C.G.C. and Sri.Deepu Thankan, Advocate for the 3 rd respondent. 5. The learned counsel for the appellant contended that the impugned judgment had confined consideration to Exhibit P9, which had already been revoked during pendency of the matter and the further technical bid evaluation, evidenced by Exhibit P14 was not considered or dealt with by the learned Single Judge. It is also contended that the fact that the appellant had admitted in the first technical bid evaluation and had also been given an extension of validity of the bid had eluded consideration. According to the learned counsel, in Exhibit P14, which is a technical bid evaluation dated 28.03.2025, 5 out of 11 bids were rejected for not extending the bid validity, and hence, the actual bids for consideration are less than 7, which makes the appellant entitled to be considered according to Note 1 of Appendix A of the notice inviting tender. According to the learned counsel, in Exhibit P14, which is a technical bid evaluation dated 28.03.2025, 5 out of 11 bids were rejected for not extending the bid validity, and hence, the actual bids for consideration are less than 7, which makes the appellant entitled to be considered according to Note 1 of Appendix A of the notice inviting tender. The legality of Exhibit P14 and the process adopted by respondent No.1, which is alleged to be arbitrary, malafide and and opposed to the notice inviting tender, were overlooked. As regards the finding that the tender of the appellant was rejected on account of appellant's failure to upload the required documents showing eligibility for upgradation to Class A, it is contended that if at all there was any deficiency of any document, the respondents ought to have issued a communication, as stipulated in Note 9 and no such notice had been issued to the appellant. Reliance is placed on the dictum laid down in Dutta Associates P. Ltd. v. Indo Merchantiles P. Ltd and others [ (1997) 1 SCC 53 ] and it is contended that the course adopted by the tendering authority in unilaterally issuing a re-tender, citing administrative reasons and rejecting the bid submitted by the appellant without adhering to Note 1 and Note 9 of the notice inviting tender etc., amounts to arbitrariness and unreasonableness. Reliance is also placed on the dictum laid down in Subodh Kumar Singh Rathour v. Chief Executive Officer [2024 KHC 6342] to buttress the contention that the process of decision making without any regard to the notice inviting tender is squarely opposed to the public interest. The learned counsel contends that the impugned judgment since it does not discuss or consider the above aspects is fit to be set aside. 6. Per contra, the learned counsel for the respondents placed reliance on the respective counter affidavits filed in the W.P. (C) and contended that as per Exhibit R1(A) tender notice, if 7 bids of eligible class and above are received, then bids of one/two class below enlisted contractors will not be considered. During the technical evaluation, 8 bids from eligible or above class bidders were received and therefore, the bid of the appellant being 2 class below, was not considered. During the technical evaluation, 8 bids from eligible or above class bidders were received and therefore, the bid of the appellant being 2 class below, was not considered. It is specifically contended relying on the tender summary report produced as Exhibit R1(B), that some of the firms including the appellant had neither uploaded nor submitted the details in support of meeting the criteria of upgradation to the eligible class, i.e. Class A. and hence the said firms including the appellant were not considered eligible for opening the price bid ie., cover 2. The learned counsel also placed reliance on the dictum laid down in Silppi Constructions Contractors v. Union of India and another [ (2020) 16 SCC 489 ] wherein the Hon'ble Supreme Court had summarised the principles concerning the scope of judicial review, regarding interpretation of tender documents and also exemplified the legal position regarding powers of the competent authority. 7. We have heard both sides in detail and have considered the contentions put forth. The principal question to be considered is whether the learned Single Judge had erred in dismissing the W.P. (C), overlooking the challenge against Exhibit P14 and concluding that Exhibits P9 and P11 are not illegal. It would be relevant to reproduce Notes 1, 2 and 9 of Appendix A notice of E tender produced as Ext.P1. “Note No.1 1. In case after opening of Cover -1, the number of MES enlisted contractors of eligible class as well as un-enlisted contractors, if any, fulfilling the other eligibility criteria given in NIT is less than 7 (seven), applications in respect of MES contractors one/two class below the eligible class shall also be considered subject to fulfilment of other eligibility criteria given in the NIT. Therefore MES contractors one/two class below may also bid for this tender. Such contractors (contractors of one/two class below the eligible class) shall not be considered in case their present residual work in hand is more than FIVE TIMES their present tendering limit. However, in case such contractors fulfil the criteria of upgradation to the stipulated eligible class based on past experience of completed work (individual work experience and/or average annual turn over, as applicable) and financial soundness (solvency/financial soundness and working capital), the ceiling of present residual work will not apply and they will be considered for issue of tender. However, in case such contractors fulfil the criteria of upgradation to the stipulated eligible class based on past experience of completed work (individual work experience and/or average annual turn over, as applicable) and financial soundness (solvency/financial soundness and working capital), the ceiling of present residual work will not apply and they will be considered for issue of tender. Such bidders shall upload in their Cover – 1 bid details related to residual work in hand showing names of work, names of Accepting Officers, Contract amounts, dates of commencement and completion (stipulated) and progress as on bid submission date. Such contractors, if claim to fulfil the criteria of upgradation shall also upload the requisite information/documents in support of upgradation. These details shall be verified by the Tender issuing authority from concerned formations in case bids of such contractors are considered for evaluation. (emphasis supplied) Note No.2 2. In case after opening of Cover -1, the number of MES enlisted contractors of eligible class as well as un-enlisted contractors, if any, fulfilling the other eligibility criteria given in NIT are 07 (Seven) or more, applications of only those one/two class below the eligible class bidders shall be considered, who have previously completed similar works satisfactorily and are meeting the criteria of upgradation in respect of past experience of completed works (individual work experience and/or average annual turnover as applicable) and financial soundness (solvency/financial soundness and working capital) as per details given in Manual on Contracts. Therefore, such contractors shall upload the requisite information/documents in the Cover – 1. (emphasis supplied) Note No. 9 9. After opening of Cover 1 and during its technical evaluation, in case any deficiency is noticed in the documents required to be uploaded by the tenderers as per NIT, a communication in the form of e-mail/SMS/Speed post etc. shall be sent to the contractor to rectify the deficiency within a period of seven days from the date of communication failing which their financial bid (Cover 2) shall not be opened and contractor shall not have any claim on the same.” (emphasis supplied) A perusal of Exhibit P9 tender evaluation summary of the tender in question reveals that the above mandates have been followed by the official respondents and that there was no arbitrariness in their action as alleged by the appellant. 11 bidders participated in the tender, and 8 of them are listed in Class A and above contractors of MES, and thereby, the bidders below Class A were ineligible to participate. Further, it is a specific requirement in Note 2 of Exhibit P1 viz., Appendix A to the notice of e-tender, that the contractor shall upload the requisite information/ documents in cover 1. The mandates of Note 9 reproduced above in this respect are very clear and specific. Admittedly, the appellant has not uploaded documents for upgradation to the eligible class ie., A class. On the said very count itself, the contention put forth by the appellant loses its sheen. Further, in Silppi Constructions Contractors (supra), it has been laid down by the Hon’ble Supreme Court that the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities must be clear, and restraint and caution should be exercised by courts while considering the same. It has been held that the Courts should give way to the opinions of the experts unless the decision is arbitrary or unreasonable, and the Courts do not sit as an appellate court over the authority's decision and must realise that the authority floating the tender is the best Judge of its requirements. The court's interference thus should be minimal. It is also trite that if two interpretations are possible, then the interpretation of the author must be accepted. The appellant in the case at hand has not been able to show arbitrariness, irrationality, bias, malafides or perversity in the decisions taken. The learned Single Judge had thus rightly concluded that this Court cannot declare the appellant as the person qualified when the tendering authority had found him ineligible. 8. We find nothing illegal in the conclusions arrived at by the learned Single Judge in the impugned judgment. The Writ Appeal is accordingly dismissed. No costs.