M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS, TRANSPORTS AND SUPPLIERS versus M/S. NEW J.K. ROADWAYS, FLEET OWNERS AND TRANSPORT CONTRACTORS & ORS. on 18 December 2020

SUPREME COURT REPORTS

[2020] 12 S.C.R.

AM/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS,TRADERS, TRANSPORTS AND SUPPLIERS

v.

M/S. NEW J.K. ROADWAYS, FLEET OWNERS ANDTRANSPORT CONTRACTORS & ORS.B

(Civil Appeal No. 4107 of 2020)

DECEMBER 18, 2020

[ROHINTON FALI NARIMAN, NAVIN SINHA ANDK. M. JOSEPH, JJ.]

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Tenders – Inspector General of Police, Kashmir Zone invitedonline tenders from reputed transporters, registered firms/associations for the supply of various types of commercial vehicles(without fuel) for the carriage of troops and equipment for theFinancial Year 2020-2021 – Four parties submitted their bids –DThe Tender Opening Committee found that respondent no. 1 did notmeet the qualifying requirements of the technical bid – The appellantfulfilling the requirements and being the lowest bidder, was allottedthe contract for the supply of commercial vehicles – Writ petition byrespondent no. 1 – The Single Judge of the High Court found thatthe appellant fulfilled the eligibility condition of holding a validEservice licence; 31 vehicles were owned by the appellant, anothereligibility condition was satisfied – Insofar, eligibility criteria ofhaving work experience was concerned, the Single Judge of theHigh Court held that since the tendering authority was the bestjudge as to whether such eligibility condition had in fact beenFsatisfied, a judicial hands-off was mandated – Thus, all the threecontentions of respondent no. 1 raised against the appellant wererejected by the Single Judge of the High Court – However, theDivision Bench of the High Court held that the respondent no. 1having satisfied condition no. 31 of N.I.T was wrongly disqualifiedby the tendering authority – The Division Bench of the High CourtGheld that the expression ‘HMV/ LMV’ meant that there was an optionof furnishing the particulars of either HMVs or LMVs or both typesof vehicles and the respondent no. 1 had submitted bid accordingly– The action of the officials in rejecting the bid of respondent no. 1on the ground of non-furnishing of list of both types of vehicles isHirrational, arbitrary and perverse – On appeal, held: A cursory

M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEETOWNERS AND TRANSPORT CONTRACTORS

glance at Condition No. 31 of N.I.T would show that the 30 vehiclesreferred to, are ‘both HMV/LMV’ – The tendering authority hasconstrued this condition to mean that both types of vehicles, i.e.HMV and LMV, need to be included in the list of 30 vehiclessubmitted by each bidder – In a series of judgments, the SupremeCourt has held that authority that authors the tender document isthe best person to understand and appreciate its requirements, andthus, its interpretation should not be second-guessed by a Court injudicial review proceedings – In accordance with the settled lawand noting the interpretation of the tendering authority, it cannotbe said that the interpretation done by the authority was a perverseone – The Division Bench of the High Court ought not to haveinterfered with it by giving its own interpretation and not givingproper credence to the word ‘both’ appearing in Condition No. 31of the N.I.T – Therefore, the Division Bench decision is set asideand the Single Judge’s judgment is restored.

Disposing of the appeal, the Court

HELD:1. A cursory glance at Condition No. 31 of the N.I.T.would show that the 30 vehicles referred to, are “bothHMV/LMV”. The tendering authority has construed this condition tomean that both types of vehicles, i.e., HMV and LMV, need to beincluded in the list of the 30 vehicles submitted by each bidder.[Para 13][1098-E-F]

2. In a series of judgments, this Court has held that theauthority that authors the tender document is the best person tounderstand and appreciate its requirements, and thus, itsinterpretation should not be second-guessed by a court in judicialreview proceedings. [Para 14][10968-F-G]

3. In accordance with these Supreme Court judgments andnoting that the interpretation of the tendering authority in thiscase cannot be said to be a perverse one, the Division Benchought not to have interfered with it by giving its own interpretationand not giving proper credence to the word “both’” appearing inCondition No. 31 of the N.I.T. For this reason, the DivisionBench’s conclusion that respondent no.1 was wrongly declaredto be ineligible, is set aside. [Para 17][1100-D-F]

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A4. Insofar as Condition No. 27 of the N.I.T. prescribing workexperience of at least 5 years of not less than the value of Rs. 2crores is concerned, suffice it to say that the expert body, beingthe Tender Opening Committee, consisting of four members,clearly found that this eligibility condition had been satisfied bythe Appellant. Without therefore going into the assessment ofBthe documents that have been supplied to this Court, it is wellsettled that unless arbitrariness or mala fide on the part of thetendering authority is alleged, the expert evaluation of a particulartender, particularly when it comes to technical evaluation, is notto be second-guessed by a writ court. [Para 18][1100-F-G]

C5. This being the case, this Court is unable to fathom howthe Division Bench, on its own appraisal, arrived at the conclusionthat the Appellant held work experience of only 1 year, substitutingthe appraisal of the expert four-member Tender OpeningCommittee with its own. [Para 20][1103-B-C]

DAfcons Infrastructure Ltd. v. Nagpur Metro RailCorporation Ltd., (2016) 16 SCC 818 : [2016] 3 SCR551; Bharat Coking Coal Ltd. v. AMR Dev Prabha(2020) SCC OnLine SC 335; Silppi ConstructionsContractors v. Union of India, (2019) SCC OnLine SCE1133; Jagdish Mandal v. State of Orissa (2007) 14 SCC517; Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 :[2016] 8 SCR 224 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4107of 2020.GFrom the Judgment and Order dated 16.10.2020 of the High Courtof Jammu and Kashmir at Srinagar in LPA No. 78 of 2020.

Rana Mukherjee, Altaf H. Naik, Sr. Advs., Adeel Ahmed,Ms. Kanika Sharma, Atif Suhrawardy, Syed Mehdi Imam, YagyawalkyaSingh, Ms. Shashi Juneja, Satish Pandey, Advs. for the appearing parties.H

M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEETOWNERS AND TRANSPORT CONTRACTORS

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

1. Leave granted.

2. In this appeal, the Inspector General of Police, Kashmir Zone,Zonal Police HQR’s Kashmir, Srinagar [“ZPHS”], being RespondentNo. 4 before us, invited online tenders (e-tenders) vide e-N.I.T. No. 01of 2020 dated 18.02.2020 [“N.I.T.”] from reputed transporters,registered firms/associations for the supply of various types of commercialvehicles (without fuel) for the carriage of troops and equipment for theFinancial Year 2020-2021. Pursuant to the N.I.T., 4 parties, namely,M/s Associated Contractors; M/s Quareshi Transport Co.; M/s GalaxyTransport Agencies, Contractors, Traders, Transports and Suppliers[“Appellant”]; and M/s New J.K. Roadways, Fleet Owners andTransport Contractors [“JK Roadways”] submitted their bids forconsideration and the same were uploaded through an e-tendering system.The tender process consisted of a technical bid and a financial bid. TheTender Opening Committee met on 11.03.2020 and found that JKRoadways, Respondent No. 1 herein, and Associated Contractors didnot meet the qualifying requirements of the technical bid, leaving QuareshiTransport Co. and the Appellant, who were considered technically eligiblefor the allotment of the contract. The Appellant’s financial bid being thelowest, vide an order dated 30.03.2020, the Appellant was allotted thecontract for the supply of commercial vehicles for the Financial Year2020-2021.

3. A writ petition was filed by JK Roadways seeking the quashingof the allotment of the contract in favour of the Appellant. Before thelearned Single Judge of the High Court of Jammu and Kashmir atSrinagar [“Single Judge”], three contentions qua the Appellant’stechnical eligibility were made by JK Roadways, which were decided inthe following manner, by a judgment dated 30.06.2020:

3a. Firstly, the learned Single Judge found that though the servicelicence of the Appellant was only valid upto 31.03.2020, ithad sought an extension of its service licence prior to its expiry.Since a lockdown was imposed on account of the outbreak ofCOVID-19, a General Order dated 30.03.2020 [“GeneralOrder”] was issued, through which the validity of alldocuments relating to transportation services were deemed A

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1094SUPREME COURT REPORTS

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to be extended till 30.06.2020. This being the case, thiscontention was decided against JK Roadways, and it washeld that the Appellant fulfilled the eligibility condition of holdinga valid service licence.

3b. Secondly, it was found that the Appellant did in fact own 30Bvehicles including heavy motor vehicles [“HMV”] and lightmotor vehicles [“LMV”], as a list of 36 vehicles was furnishedto ZPHS, the tendering authority. Since a complaint in thisregard had been made by the unsuccessful bidders, the samewas forwarded to the Senior Superintendent of Police, Srinagar[“SSP”] to ascertain the veracity of the documents furnished.CThe SSP submitted a report finding that though 5 vehicleswere found to be owned by individuals other than the Appellant,31 vehicles were still owned by the Appellant, as a result ofwhich the eligibility condition was satisfied. It was also foundthat insofar as 1 vehicle was concerned, it was indeed ownedDby the Appellant as there existed a typographical error in theregistration number of the vehicle.

3c. Thirdly, as far as the eligibility criteria of having workexperience of at least 5 years, not being less than Rs. 2 croreswas concerned, the learned Single Judge found that workexperience certificates from 2014 to 2018 were submittedand since the tendering authority was the best judge as towhether such eligibility condition had in fact been satisfied, ajudicial hands-off was mandated.

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3d. Finally, the learned Single Judge concluded:

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“16. Considering the submissions of the parties and in view ofthe law laid down by the Supreme Court and also the fact thatthe contract is for the year 2020-21, which has alreadycommenced w.e.f. 1st April, 2020, public interest would beseverely jeopardized if the respondents are not allowed toexecute the contract because the bid of respondent No. 5 wasthe lowest. It is, therefore, in public interest not to interfere inthe allotment of contract in favour of respondent No. 5, whosatisfied the criteria as laid down in technical bid as he hadfurnished list of HMV & LMV vehicles which was the mostessential condition of the tender. Thus, the petitioner having G

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M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEETOWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]

been found ineligible cannot now question allotment of contractto respondent No. 5 because the petitioner is not similarlysituated.”

4. JK Roadways filed a letters patent appeal before the DivisionBench of the High Court of Jammu and Kashmir at Srinagar [“DivisionBench”]. By the impugned judgment dated 16.10.2020, the DivisionBench recorded:

“14) Though the appellant has raised a number of grounds in theappeal yet during the course of arguments, the main thrust ofarguments advanced by the learned counsel for the appellant wason the following grounds:

(I) That the official respondents were not justified in rejectingbid of the appellant on the ground that it had submitted only thelist of heavy motor vehicles and that the list did not contain theparticulars of light motor vehicles;

(II) That the respondent No.5 despite lacking the requisiteexperience in supply of vehicles, was awarded the contract,which action has amounted to award of contract in favour ofan ineligible bidder to the exclusion of an eligible bidder.”

5. After setting out Condition No. 31 of the N.I.T., the DivisionBench concluded:

“16) From a perusal of the aforesaid condition, it is clear that theofficial respondents while formulating the tender notice have usedthe expression “HMV/LMV” meaning thereby that a tendererhad the option of furnishing the particulars of either HMVs orLMVs or both types of vehicles. No other construction can begiven to the expression “HMV/LMV”. If the official respondentsdesired that a tenderer must own both types of vehicles i.e. HMVsas well as LMVs, they could have easily used the word “and”instead of “/” in between HMV and LMV in the tender notice,use whereof refers to “or”. This is not the case over here. Thus,if the appellant has furnished the list of Heavy Motor Vehiclesonly, he has done what a reasonable and prudent person would doupon going through the tender condition quoted hereinabove. Theaction of the official respondents of rejection of technical bid ofthe appellant on the ground of non-furnishing of list of both types A

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[2020] 12 S.C.R.

Aof vehicle is, therefore, irrational, arbitrary and perverse.Therefore, the contention of the appellant in this regard is full ofsubstance and deserves to be accepted.

17) Mr. B. A. Dar, Sr. AAG, has submitted that the tender noticecondition stated “both HMV/LMV” which meant that theBtenderers had to provide details of both HMV and LMV vehicles.Per contra learned Sr. counsel for the appellant has contendedthat the very appellant was found eligible in respect of the samecondition and was awarded the same work for the previous fiveyears which was satisfactorily completed.

C18) We are unable to agree with the submission of Sr. AAG. Asalready noted, if the respondents required provision of details ofboth HMV and LMV vehicles, they would have placed “and”between them. This has not been done.”

6. As a result, the Division Bench found that JK Roadways, havingDsatisfied Condition No. 31 of the N.I.T., was wrongly disqualified by thetendering authority. So far as the requirement under Condition No. 27 ofthe N.I.T. of holding work experience of at least 5 years was concerned,the Division Bench found that the Appellant had experience of supplyingvehicles only for a few months in the years 2014 and 2015 and therefore,the Appellant could, at best, be said to hold work experience of supplyingEvehicles for 1 year only. Thus, Condition No. 27 of the N.I.T., being anessential condition, remained unfulfilled by the Appellant. Resultantly,the judgment of the Single Judge dated 30.06.2020 was set aside and thecontract awarded in favour of the Appellant was quashed. The officialrespondents were directed to invite fresh tenders and complete theFprocess within a period of 1 month from the date of the order of theDivision Bench.

7. On 04.11.2020, this Court issued the following order:

“Issue notice.

There shall be an ad-interim stay of operation of the impugnedGjudgment and order of the High Court.

Counter affidavit within one week by Respondent No.1. Likewise,counter affidavit to be filed by the State within two weeks.Rejoinder affidavit within one week thereafter.”

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M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEETOWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]

8. As a result of this Court’s order, the Appellant has continuedexecuting the awarded work till date, with roughly 3 months left for thecompletion of the contract period.

9. Shri Rana Mukherjee, learned senior advocate appearing onbehalf of the Appellant, argued that the Division Bench was wrong onboth counts. According to him, a plain reading of Condition No. 31 of theN.I.T. showed that “bothHMV/LMV” had to be supplied, and as JKRoadways only supplied a list of HMVs, it was obviously ineligible.Further, he placed reliance upon the judgments of this Court stating thatthe authority that floats the tender is the best judge on how a tendercondition should be read. Accordingly, the Division Bench oversteppedits mark in construing the eligibility conditions of the N.I.T. contrary tothe tendering authority’s interpretation. Insofar as the work experiencecondition was concerned, he adverted to the work experience certificatesfrom the Financial Years 2014-2015 to 2018-2019, which showed thatthe Appellant possessed the necessary work experience, which had alsobeen demonstrated to the Tender Opening Committee, which had, inturn, reflected the same in a tender scrutiny report, showing that it hadapplied its mind in rendering the Appellant a technically qualified bidder.With respect to the service licence, Shri Mukherjee relied upon theconclusions of the Single Judge and stated that since this contention wasgiven up before the Division Bench, this Court ought not to allow thispoint to be re-agitated.

10. Shri Altaf H. Naik, learned senior advocate appearing on behalfof JK Roadways, reiterated the three submissions made before the SingleJudge and also sought to argue that the work experience certificatessupplied by the Appellant were in the name of “Galaxy Agencies” andtherefore, could not be counted to the credit of the Appellant. Hevehemently argued that the Appellant did not possess a service licencefor the relevant period, the licence having expired on 31.03.2020 and nothaving been renewed by the General Order, when properly read. Thus,the eligibility conditions were not satisfied by the Appellant. Equally, theDivision Bench was right in saying that insofar as the work experiencerequirement was concerned, the Appellant had only 1 year of experience,which would not meet the essential requirement of the N.I.T. Finally, healso advanced submissions on JK Roadways being qualified on a readingof Condition No. 27 of the N.I.T.

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A11. Smt. Shashi Juneja, additional standing counsel appearing onbehalf of the Union Territory of Jammu & Kashmir, supported the grantof the contract in favour of the Appellant and said that the DivisionBench was incorrect in its construction of Condition No. 27 of the N.I.T.She also submitted that the Tender Opening Committee, being an expertbody and having scrutinised the documents supplied by the Appellant,Bcannot now be second-guessed by the judgment of the High Court.

12. Having heard the learned counsel for the parties, it is firstnecessary to set out the N.I.T.’s “Terms and Conditions/QualifyingCriteria”. Condition Nos. 27 and 31 of the N.I.T., which are material tothis case, state as follows:C

“Terms and Conditions/Qualifying Criteria xxx xxx xxx

27. The firm/association shall have working experience of at leastFive years with documentary proof and work should not [be] lessD[than] 2 Crores.

xxx xxx xxx

31. The firm/tenderer should have owned at least 30 nos. of vehiclesboth HMV/LMV and attached 200 vehicles with the firmalongwith documentary proof.”

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13. Even a cursory glance at Condition No. 31 of the N.I.T. wouldshow that the 30 vehicles referred to, are “bothHMV/LMV”. Thetendering authority has construed this condition to mean that both typesof vehicles, i.e., HMV and LMV, need to be included in the list of the 30vehicles submitted by each bidder.F

14. In a series of judgments, this Court has held that the authoritythat authors the tender document is the best person to understand andappreciate its requirements, and thus, its interpretation should not besecond-guessed by a court in judicial review proceedings. In AfconsInfrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016G(16) SCC 818, this Court held:

“15. We may add that the owner or the employer of a project,having authored the tender documents, is the best person tounderstand and appreciate its requirements and interpret itsdocuments. The constitutional courts must defer to this H

M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEETOWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]

understanding and appreciation of the tender documents, unlessthere is mala fide or perversity in the understanding or appreciationor in the application of the terms of the tender conditions. It ispossible that the owner or employer of a project may give aninterpretation to the tender documents that is not acceptable tothe constitutional courts but that by itself is not a reason forinterfering with the interpretation given.”

(page 825)

15. In the judgment in Bharat Coking Coal Ltd. v. AMR DevPrabha 2020 SCC OnLine SC 335, under the heading “Deference toauthority’s interpretation”, this Court stated:

“51. Lastly, we deem it necessary to deal with another fundamentalproblem. It is obvious that Respondent No. 1 seeks to only enforceterms of the NIT. Inherent in such exercise is interpretation ofcontractual terms. However, it must be noted that judicialinterpretation of contracts in the sphere of commerce stands on adistinct footing than while interpreting statutes.

52. In the present facts, it is clear that BCCL and India have laidrecourse to Clauses of the NIT, whether it be to justify condonationof delay of Respondent No. 6 in submitting performance bankguarantees or their decision to resume auction on grounds oftechnical failure. BCCL having authored these documents, is betterplaced to appreciate their requirements and interpret them.(AfconsInfrastructure Ltd v. Nagpur Metro Rail Corporation Ltd,(2016) 16 SCC 818 at para 15)

53. The High Court ought to have deferred to this understanding,unless it was patently perverse or mala fide. Given how BCCL’sinterpretation of these clauses was plausible and not absurd, solelydifferences in opinion of contractual interpretation ought not tohave been grounds for the High Court to come to a finding thatthe appellant committed illegality.”

16. Further, in the recent judgment in Silppi ConstructionsContractors v. Union of India, 2019 SCC OnLine SC 1133, thisCourt held as follows:

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A“20. The essence of the law laid down in the judgments referredto above is the exercise of restraint and caution; the need foroverwhelming public interest to justify judicial intervention inmatters of contract involving the state instrumentalities; the courtsshould give way to the opinion of the experts unless the decisionis totally arbitrary or unreasonable; the court does not sit like aBcourt of appeal over the appropriate authority; the court mustrealise that the authority floating the tender is the best judge of itsrequirements and, therefore, the court’s interference should beminimal. The authority which floats the contract or tender, andhas authored the tender documents is the best judge as to how theCdocuments have to be interpreted. If two interpretations arepossible then the interpretation of the author must be accepted.The courts will only interfere to prevent arbitrariness, irrationality,bias, mala fides or perversity. With this approach in mind we shalldeal with the present case.”

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17. In accordance with these judgments and noting that theinterpretation of the tendering authority in this case cannot be said to bea perverse one, the Division Bench ought not to have interfered with itby giving its own interpretation and not giving proper credence to theEword “both” appearing in Condition No. 31 of the N.I.T. For this reason,the Division Bench’s conclusion that JK Roadways was wrongly declaredto be ineligible, is set aside.

18. Insofar as Condition No. 27 of the N.I.T. prescribing workexperience of at least 5 years of not less than the value of Rs. 2 croresFis concerned, suffice it to say that the expert body, being the TenderOpening Committee, consisting of four members, clearly found that thiseligibility condition had been satisfied by the Appellant before us. Withouttherefore going into the assessment of the documents that have beensupplied to this Court, it is well settled that unless arbitrariness or malafide on the part of the tendering authority is alleged, the expert evaluationGof a particular tender, particularly when it comes to technical evaluation,is not to be second-guessed by a writ court. Thus, in Jagdish Mandalv. State of Orissa, (2007) 14 SCC 517, this Court noted:

“22. Judicial review of administrative action is intended to preventarbitrariness, irrationality, unreasonableness, bias and mala fides.

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M/S. GALAXY TRANSPORT AGENCIES, CONTRACTORS, TRADERS,TRANSPORTS AND SUPPLIERS v. M/S. NEW J.K. ROADWAYS, FLEETOWNERS AND TRANSPORT CONTRACTORS [R. F. NARIMAN, J.]

Its purpose is to check whether choice or decision is made“lawfully” and not to check whether choice or decision is “sound”.When the power of judicial review is invoked in matters relatingto tenders or award of contracts, certain special features shouldbe borne in mind. A contract is a commercial transaction.Evaluating tenders and awarding contracts are essentiallycommercial functions. Principles of equity and natural justice stayat a distance. If the decision relating to award of contract is bonafide and is in public interest, courts will not, in exercise of powerof judicial review, interfere even if a procedural aberration or errorin assessment or prejudice to a tenderer, is made out. The powerof judicial review will not be permitted to be invoked to protectprivate interest at the cost of public interest, or to decide contractualdisputes.The tenderer or contractor with a grievance can alwaysseek damages in a civil court. Attempts by unsuccessful tendererswith imaginary grievances, wounded pride and business rivalry, tomake mountains out of molehills of some technical/proceduralviolation or some prejudice to self, and persuade courts to interfereby exercising power of judicial review, should be resisted. Suchinterferences, either interim or final, may hold up public works foryears, or delay relief and succour to thousands and millions andmay increase the project cost manifold. Therefore, a court beforeinterfering in tender or contractual matters in exercise of powerof judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by theauthority is mala fide or intended to favour someone; or Whether the process adopted or decision made is soarbitrary and irrational that the court can say: “the decision issuch that no responsible authority acting reasonably and inaccordance with relevant law could have reached”;

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interferenceunder Article 226. Cases involving blacklisting or imposition ofpenal consequences on a tenderer/contractor or distribution ofState largesse (allotment of sites/shops, grant of licences, ABC

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Adealerships and franchises) stand on a different footing as theymay require a higher degree of fairness in action.”

(pages 531-532)(emphasis supplied)

B19. Similarly, in Montecarlo Ltd. v. NTPC Ltd., 2016 (15)SCC 272, this Court stated as follows:

“26. We respectfully concur with the aforesaid statement of law.We have reasons to do so. In the present scenario, tenders arefloated and offers are invited for highly complex technical subjects.It requires understanding and appreciation of the nature of workand the purpose it is going to serve. It is common knowledge inthe competitive commercial field that technical bids pursuant tothe notice inviting tenders are scrutinised by the technical expertsand sometimes third-party assistance from those unconnected withthe owner’s organisation is taken. This ensures objectivity. Bidder’sexpertise and technical capability and capacity must be assessedby the experts. In the matters of financial assessment, consultantsare appointed. It is because to check and ascertain that technicalability and the financial feasibility have sanguinity and are workableand realistic. There is a multi-prong complex approach; highlytechnical in nature. The tenders where public largesse is put toauction stand on a different compartment. Tender with which weare concerned, is not comparable to any scheme for allotment.This arena which we have referred requires technical expertise.Parameters applied are different. Its aim is to achieve high degreeof perfection in execution and adherence to the time schedule.But, that does not mean, these tenders will escape scrutiny ofjudicial review. Exercise of power of judicial review would becalled for if the approach is arbitrary or mala fide or procedureadopted is meant to favour one. The decision-making processshould clearly show that the said maladies are kept at bay. Butwhere a decision is taken that is manifestly in consonance withthe language of the tender document or subserves the purposefor which the tender is floated, the court should follow the principleof restraint. Technical evaluation or comparison by the court wouldbe impermissible. The principle that is applied to scan andunderstand an ordinary instrument relatable to contract in other C

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spheres has to be treated differently than interpreting andappreciating tender documents relating to technical works andprojects requiring special skills. The owner should be allowed tocarry out the purpose and there has to be allowance of free playin the joints.”

(page 288)

20. This being the case, we are unable to fathom how the DivisionBench, on its own appraisal, arrived at the conclusion that the Appellantheld work experience of only 1 year, substituting the appraisal of theexpert four-member Tender Opening Committee with its own.

21. As was correctly pointed out by Shri Mukherjee, learned seniorcounsel appearing on behalf of the Appellant, the contention as to theinvalidity of the Appellant’s service licence for the requisite period doesnot appear to have been argued before the Division Bench, though arguedbefore and rejected by the learned Single Judge. This being the case, wedo not think that the scope of this appeal be enlarged to include any suchpoint which appears to have been given up before the Division Bench.

22. Also, the argument that the Appellant has submitted workexperience certificates in the name of “Galaxy Agencies”, which is aseparate entity from “Galaxy Transport Agency”, has not been arguedeither before the Single Judge or before the Division Bench. In thiscircumstance, we reject this point also.

23. The Division Bench’s judgment dated 16.10.2020 is thereforeset aside and the learned Single Judge’s judgment dated 30.06.2020 isrestored. The appeal is disposed of in the aforesaid terms.

Ankit Gyan

Appeal disposed of.

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