M/S. GIRDHARI LAL CONSTRUCTIONS (P) LTD v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** ## **WP(C).No.35960 OF 2019(T)** ## **- PETITIONERS :** **M/S.GIRDHARI LAL CONSTRUCTIONS (P) LTD. OFFICE AT SPG SITE SECTOR 21, DWARAKA, NEW DELHI, REGISTERED OFFICE AT 2899 D-5B, AGGARWAL COLONY, BHATINDA, PUNJAB REPRESENTED BY ITS DIRECTOR, SHRI VIKAS MEHTA, S/O.GIRDHARI LAL MEHTA** **BY ADVS. SRI.JOSEPH KODIANTHARA (SR.) SRI.DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR** **- RESPONDENTS :** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**MINISTRY OF HOUSING AND URBAN AFFAIRS,**| ||**NIRMAN BHAVAN, NEW DELHI - 110 108.**| |**2**|**CENTRAL PUBLIC WORKS DEPARTMENT,**| ||**NIRMAN BHAVAN, NEW DELHI - 110 108**| ||**REPRESENTED BY ITS DIRECTOR GENERAL.**| |**3**|**EXECUTIVE ENGINEER**| ||**IIT PALAKKAD PROJECT DIVISION I, CPWD,**| ||**IIT PALAKKAD MAIN CAMPUS, NEAR GRAMALAKSHMI**| ||**MUDRALAYAM, KANJIKODE (WEST), PALAKKAD - 678 623.**| |**4**|**SPECIAL DIRECTOR GENERAL**| ||**SOUTHERN REGION, CENTRAL PUBLIC WORKS DEPARTMENT,**| ||**FIRST FLOOR, G WING RAJAJI BHAVAN, III AVENUE,**| ||**BESANT NAGAR, CHENNAI - 600 090.**| |**5**|**INDIAN INSTITUTE OF TECHNOLOGY**| ||**AHALIA INTEGRATED CAMPUS, PALAKKAD - 678 557**| ||**REPRESENTED BY ITS DIRECTOR**| WP(C).No.35960 OF 2019(T) -: 2 :- **6 SHAPOORJI PALLOONJI AND COMPANY PRIVATE LTD SP CENTER, 41/44, MINOO DESAI MARG, COLABA, APOLLO BANDAR, MUMBAI, MAHARASHTRA - 400 005 REPRESENTED BY MANAGING DIRECTOR** **BY SRI.P.VIJAYAKUMAR, ASG OF INDIA BY SRI.JAISHANKAR V.NAIR, CGC BY SRI.M.RAMESH CHANDER (SR.) BY SMT.K.A.SANJEETHA BY SRI.BEJOY JOSEPH P.J. BY SRI.G.VIJAY ANAND** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2020, THE COURT ON 18.02.2020 DELIVERED THE FOLLOWING:** WP(C).No.35960 OF 2019(T) -: 3 :- ## **JUDGMENT** ## **Dated this the 18th day of February 2020** This writ petition is filed seeking the following prayers :- - “(i) Issue a writ of certiorari or order or direction calling for the records leading to Exhibit P6 and P8 and quash the same. - (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 2 to 4 to consider the financial bid of the petitioner for the tender covered by Exhibit P1 Notice Inviting Tender. - (iii) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the third respondent is incompetent for being a part of the Evaluation Committee for Performance of Work (quality) and has no authority to reject the technical bid of the petitioner in terms of the CPWD Works Manual.” 2. Heard the learned Senior Counsel for the petitioner, the learned Senior Counsel appearing for the 6[th] respondent as well as the learned Assistant Solicitor General appearing for respondents 1 to 5. 3. The petitioner challenges the rejection of the tender submitted by it. It is submitted that the sole reason for rejection of the tender, after finding that the petitioner was pre-qualified, was that the works admittedly carried out by the petitioner were defective in quality. It is the case of the petitioner that the very WP(C).No.35960 OF 2019(T) -: 4 :- same works which were considered for assessment had been accepted for other works by the Central PWD itself. It is stated that the rejection of the petitioner's tender on the ground that the quality of the works earlier performed by the petitioner was defective is a mala fide decision taken only to eliminate the petitioner from the field of choice and to award the contract to the 6[th] respondent. 4. It is further contended that the action of the respondents is against the public interest since by rejecting the technical bid of the petitioner and not permitting the petitioner to participate in the financial bid stage, the respondents are causing a loss to the exchequer since the amount quoted by the petitioner was Rs.64 Crores less than the amount quoted by the 6[th] respondent. It is further contended that in view of the magnitude of the work in question, the work was a limited tender work and in such cases, the Central Vigilance Commission has specifically directed that once the pre-qualification stage is successfully overcome by a tenderer, there must be no elimination before the financial bid stage. 5. The learned Senior Counsel for the petitioner relies on a decision of the Apex Court in **Siemens Public Communication Networks Private Limited and another** v. **Union of India and** WP(C).No.35960 OF 2019(T) -: 5 :- **others** [(2008) 16 SCC 215] in support of the contention that where the decision making process is arbitrary, irrational or unreasonable, then this Court would not be powerless to exercise jurisdiction under Article 226 of the Constitution of India, even in contractual matters concerning the State. 6. A detailed counter affidavit and an additional counter affidavit have been placed on record by the respondents 1 to 4. It is contended therein that the work in question is for the construction of a permanent campus and allied buildings for the IIT, Palakkad. The estimated cost of work was Rs.595,40,42,000/with a time period of 27 months for completion. It is stated that Ext.P1 notice inviting tender specified that the initial criteria prescribed in clause 7.1 included experience of eligible similar works, solvency, financial turn over etc. It is stated that clause 8.1.3 of Ext.P1 specifically provided for the evaluation of the earlier works by a committee constituted by the approving authority on completed as well as ongoing works after due inspection. It is stated that marks for quality would be awarded based on inspection and on the parameters mentioned in Form D attached to Ext.P1 Notice Inviting Tender. It is stated that the said clause has been applied equally to all the bidders and that the committee, which had been constituted for the purpose at WP(C).No.35960 OF 2019(T) -: 6 :- Ext.R1(a) which was a highly qualified technical committee, had conducted the inspection and found the quality of the work of the petitioner to be wanting in several respects. It is contended that in view of the fact that it was not a tender inviting authority which had conducted the inspections and since there is no challenge either to the constitution of the committee or to the inspection duly conducted by it, the grounds raised in the writ petition are completely unsustainable. 7. The decisions of the Apex Court in **Afcons Infrastructure Ltd.** v. **Nagpur Metro Rail Corporation Ltd. and another** [2016 KHC 6606], **Municipal Corporation, Ujjain and another** v. **BVG India Limited and others** [2018 KHC 6222], **Montecarlo Ltd.** v. **Ntpc Ltd.** [2016 KHC 6701], **Sam Built Well Pvt. Ltd. (M/s.)** v. **Deepak Builders and others** [2017 KHC 6859] and of a Division Bench of this Court in **Pushkarraj Constructions Pvt. Ltd. (M/s.) and others** v. **Silppi Constructions and contractors and others** [2019 (3) KHC 566] are relied on to contend that where a technically qualified committee has rejected the bid of a tenderer on the basis of valid considerations referable to the conditions stipulated in the notice inviting tender, this Court, exercising its power of judicial review under Article 226 of the Constitution of India, would not be WP(C).No.35960 OF 2019(T) -: 7 :- justified in interfering with such decisions, unless there are glaring instances of unreasonableness or mala fides vitiating such decision, which should be discernible from the materials on record. 8. The 5[th] respondent has also placed an affidavit on record supporting the contentions of respondents 1 to 4. The learned Senior Counsel for the 6[th] respondent has brought to my notice a decision of this Court in **The Silppi Constructions Contractors** v. **Union of India (UOI) and others** [2019 (11) SCALE 592] to contend that the power of judicial review cannot be exercised in contractual matters unless the decision is shown to be arbitrary, capricious or perverse. 9. Having considered the contentions advanced, I am of the opinion that the issue to be considered falls in a very narrow compass. The question is whether the rejection of the bid submitted by the petitioner relying on clause 8.1.3 of Ext.P1 Notice Inviting Tender was justifiable. Clause 7.0 of Ext.P1 provided the initial criteria for eligibility. In this case, it is not in dispute that the petitioner as well as the 6[th] respondent met such criteria. The rejection of the petitioner's bid is only on the ground that the subject works which had been offered by the petitioner to support his experience did not meet the quality criteria as evaluated by the committee constituted under Ext.P1. WP(C).No.35960 OF 2019(T) ## -: 8 :- ## 10. Clause 8.1.3 of Ext.P1 reads as follows :- “8.1.3 For attribute at 8.1.2 (d) (i.e performance on works - quality): Evaluation of the performance of contractors for eligibility shall be done by a Committee constituted by NIT approving authority. The assessment of quality for completed as well as ongoing works submitted by the bidders shall be got inspected by the committee which may consist of client or any other authority as decided by NIT approving authority. The marks for the quality shall be given based on this inspection and the parameters mentioned in Form D.” It is specified therein that marks have to be awarded by the committee constituted by the NIT approving authority based on the inspection conducted by them and on the parameters mentioned in Form D. Form D is available at page No.38 of Ext.P1. In the counter affidavit filed on behalf of respondents 1 to 4, Ext.R1(a) proceedings constituting the expert committee as provided in clause 8.1.3 is produced. The learned ASG has also produced for inspection of this Court the Form D assessment as completed by the committee, which has resulted in the award of only 16.83 marks to the petitioner and which has resulted in the petitioner being eliminated from the bid process. The details of Form D assessment in respect of the 6[th] respondent is also produced for perusal. WP(C).No.35960 OF 2019(T) -: 9 :- 11. On a consideration of the materials placed on record and the specific pleadings on the point, I find that a committee had been duly constituted under clause 8.1.3 and that an assessment had been carried out by the said committee with regard to the completed and ongoing works of all the tenderers. The committee, after evaluation, had assigned marks for the works in question in Form D with regard to each of the parameters. The result of such evaluation was that the petitioner failed to secure 50% marks needed with regard to the quality of the works, completed and ongoing. On a consideration of the pleadings and the materials on record, I am of the opinion that in the absence of any pleadings as to the assessment conducted by the committee or the constitution of the committee, the contention raised that since the very same works had been subjected to assessment in earlier proceedings and had been found to be satisfactory, cannot be a reason to successfully challenge the elimination of the petitioner from the bidding process on the basis of an assessment carried out by a committee constituted for the said purpose in terms of clause 8.1.3. The assessment by the committee would have been on different dates or at different points in the same construction and would definitely be a subjective analysis and the award of marks would therefore be an exercise which is not open to a re-examination by WP(C).No.35960 OF 2019(T) -: 10 :- this Court under Article 226 of the Constitution of India. In view of the fact that an assessment had admittedly been carried out with regard to the quality of works uniformly in respect of all the tenderers, I am of the opinion that the contentions raised as to mala fides cannot be accepted. In the above view of the matter, the writ petition fails and the same is accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/7.2.2020 WP(C).No.35960 OF 2019(T) ## -: 11 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE NOTICE INVITING TENDER NO.03/201920/CPM/IITPPD1 ISSUED IN SEPTEMBER 2019** - **EXHIBIT P2 TRUE COPY OF THE RECEIPT OF DEPOSITION OF EARNEST MONEY DATED 11.11.2019** - **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 02.12.2019 SENT BY THE THIRD RESPONDENT FOR THE INSPECTION** - **EXHIBIT P4 TRUE COPY OF THE PERFORMANCE CERTIFICATE AS REQUIRED FOR EVALUATION IN THE FORMAT OF FORM-D DATED 05.11.2019 ISSUED BY THE NBCC (INDIA) LTD** - **EXHIBIT P5 TRUE COPY OF THE PERFORMANCE CERTIFICATE AS REQUIRED FOR EVALUATION IN THE FORMAT OF FORM-D DATED 30.09.2019 ISSUED BY THE DAA** - **EXHIBIT P6 TRUE COPY OF THE OFFICE ORDER DATED 18.12.2019 OF THE THIRD RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 19.12.2019** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION ISSUED BY THE THIRD RESPONDENT DATED 20.12.2019** - **EXHIBIT P9 TRUE COPY OF THE RELEVANT PAGES OF THE NOTICE INVITING TENDER ISSUED BY THE SECOND RESPONDENT FOR THE CONSTRUCTION OF IISER COMPLEX AT BERHAMPUR.** - **EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF THE NOTICE INVITING TENDER ISSUED BY THE SECOND RESPONDENT FOR THE CONSTRUCTION OF CRPF HEADQUARTERS BUILDING AT CGO COMPLEX, NEW DELHI DATED NIL** - **EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF THE NOTICE INVITING TENDER ISSUED BY THE SECOND RESPONDENT FOR THE CONSTRUCTION OF SUPER SPECIALTY BLOCK IN RML HOSPITAL, NEW DELHI.** - **EXHIBIT P12 TRUE COPY OF THE COMMUNICATION ISSUED BY THE CHIEF ENGINEER AND EXECUTIVE DIRECTOR, IIT DELHI PROJECT ZONE OF CPWD DATED 14/12/2019.** WP(C).No.35960 OF 2019(T) -: 12 :- - **EXHIBIT P13 TRUE COPY OF THE LIST OF TECHNICALLY QUALIFIED BIDDERS FOR THE CONSTRUCTION OF CRPF HEADQUARTERS BUILDING AT CGO COMPLEX NEW DELHI PUBLISHED IN THE WEBSITE OF THE SECOND RESPONDENT IN THE MONTH OF NOVEMBER 2019** - **EXHIBIT P14 TRUE COPY OF THE LIST OF TECHNICALLY QUALIFIED BIDDERS FOR THE CONSTRUCTION OF IISER COMPLEX AT BERHAMPUR PUBLISHED IN THE WEBSITE OF THE SECOND RESPONDENT IN THE MONTH OF MAY, 2019** - **EXHIBIT P15 TRUE COPY OF THE RELEVANT PAGES OF THE CPWD MANUAL, 2014** - **EXHIBIT P16 TRUE COPY OF THE PERFORMANCE OF THE BIDDER ISSUED BY THE BCC (INDIA) LTD DATED 30.04.2019** - **EXHIBIT P17 TRUE COPY OF THE JUDGMENT IN WP(C)NO.13767/2019 BY THE HONOURABLE HIGH COURT OF DELHI DATED 24.12.2019** - **EXHIBIT P18 TRUE COPY OF THE FORM D EXHIBIT P19 TRUE COPY OF THE ASSESSMENT OF QUALITY OF THE COMPLETED WORK OF THE PETITIONER CONDUCTED BY CPWD COMMITTEE FOR IISER BERHAMPUR** - **EXHIBIT P20 TRUE COPY OF THE ASSESSMENT OF QUALITY OF THE WORK OF THE PETITIONER CONDUCTED BY THE CPWD COMMITTEE CONSTITUTED FOR RML DELHI** - **EXHIBIT P21 TRUE COPY OF THE ASSESSMENT OF QUALITY OF THE WORK OF THE PETITIONER CONDUCTED BY THE CPWD COMMITTEE CONSTITUTED FOR RML DELHI** **EXHIBIT P22 TRUE COPY OF THE RELEVANT PAGES OF THE CPWD WORKS MANUAL 2019 WHICH DEFINES SPECIALIZED WORKS EXHIBIT P23 TRUE COPY OF THE LIST OF CONTRACTORS PARTICIPATED FOR THE TENDER FOR THE REDEVELOPMENT OF RML HOSPITAL, NEW DELHI EXHIBIT P24 TRUE COPY OF THE OPENING PAGE OF THE CPWD MANUAL 2019 EXHIBIT P25 TRUE COPY OF THE RELEVANT PAGES OF THE CPWD WORKS MANUAL, 2014** WP(C).No.35960 OF 2019(T) -: 13 :- - **EXHIBIT P26 TRUE COPY OF THE RELEVANT PAGES OF THE CPWD WORKS MANUAL, 2019** - **EXHIBIT P27 TRUE COPY OF THE RELEVANT PAGE OF THE CPWD WORKS MANUAL 2019 WHICH SPECIFIES THE DUTY OF THE CHIEF ENGINEER TO ASCERTAIN THE REASONABILITY OF PRICES** **EXHIBIT P28 TRUE COPY OF THE CIRCULAR ISSUED BY THE CENTRAL VIGILANCE COMMISSION DATED 18.5.2009 WITH RESPECT TO THE ADOPTION OF INTEGRITY PACT STANDARD OPERATING PROCEDURE** - **EXHIBIT P29 TRUE COPY OF THE OFFICE MEMORANDUM DATED 23.07.2019 ISSUED BY THE DIRECTOR GENERAL, CPWD.** - **EXHIBIT P30 TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE DIRECTOR, TECHNICAL AND PUBLIC RELATIONS UNIT OF CPWD DATED 20.01.2020.** - **EXHIBIT P31 TRUE COPY OF THE RELEVANT PAGES OF THE CPWD WORKS MANUAL, 2019 CONTAINING SOP 5/5 DT.NIL.** - **EXHIBIT P32 TRUE COPY OF COMMUNICATION DATED 20/01/2020 RECEVIED FROM CPWD, IISER, BERHAMPUR.** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R1(a) TRUE COPY OF THE OFFICE MEMORANDUM NO. 23(3)/PPZ/2019/298 DATED 8/11/2019** **EXHIBIT R1(b) TRUE COPY OF THE OFFICE MEMORANDUM NO.23(8)/PPZ/2019/330 DATED 27/11/2019** **EXHIBIT R1(c) TRUE COPY OF THE ORDER NO.23(2)(1)/EE&SM(C)1/2019/812 DATED 18/12/2019** **EXHIBIT R1(d) TRUE COPY OF THE CIRCULAR DATED 7/3/2019 EXHIBIT R1(e) TRUE COPY OF THE REPORT DATED 12/12/2019 EXHIBIT R1(f) TRUE COPY OF THE APPROVAL DATED 17/12/2019 EXHIBIT R1(g) TRUE COPY OF THE COMMUNICATION DATED 26/12/2019 EXHIBIT R1(h) TRUE COPY OF THE CORRECTION SLIP DATED 14/5/2018 EXHIBIT R1(i) TRUE COPY OF THE WORKS MANUEL (RELEVANT PAGES)** WP(C).No.35960 OF 2019(T) -: 14 :- **EXHIBIT R1(j) TRUE COPY OF THE CORRESPONDING PROVISION OF STANDARD OPERATING PROCEDURES FOR CPWD WORKS MANUEL 2019 EXHIBIT R1(K) TRUE COPY OF THE COPIES OF THE RELEVANT PROVISIONS OF CPWD WORKS MANUAL,2019 EXHIBIT R1(L) TRUE COPY OF THE PROVISION OF TENDER DOCUMENT EXHIBIT R5(a) TRUE COPY OF THE OFFICE MEMORANDUM DATED 08.11.2019.** //TRUE COPY// P.A. TO JUDGE