RAJI MATHEW & CO. v UNION OF INDIA

**“CR”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 WP(C) NO. 15227 OF 2022** ## **PETITIONER/S:** RAJI MATHEW & CO. PAMPLANIYIL, BHARANANGANAM P.O., KOTTAYAM DISTRICT, PIN - 686 578, REPRESENTED BY ITS MANAGING PARTNER, SHRI. RAJI MATHEW. BY ADVS. SANTHOSH MATHEW ARUN THOMAS KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KURIAN ANTONY MATHEW ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, TRANSPORT BHAWAN,1, PARLIAMENT STREET, NEW DELHI - 110001 2 THE SUPERINTENDING ENGINEER, PWD, NATIONAL HIGHWAY (CENTRAL) CIRCLE, VYTTILA, KOCHI, KERALA - 682019 3 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, NATIONAL HIGHWAYS, THIRUVANANTHAPURAM, KERALA - 695033 4 THE REGIONAL OFFICER, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, THIRUVANANTHAPURAM, KERALA - 695033 5 SENIOR FINANCE OFFICER, CE, NATIONAL HIGHWAYS, THIRUVANANTHAPURAM, KERALA- 695033 6 DEPUTY SUPERINTENDING ENGINEER, NATIONAL HIGHWAYS (CENTRAL) CIRCLE, VYTTILA, KOCHI, KERALA- 682019 7 M/S VKJ INFRASTRUCTURES, V/35, VARAPETTY P.O., KOTHAMANGALAM-686691 W.P.(C) Nos.15227 & 15229/2022 **==> picture [16 x 8] intentionally omitted <==** REPRESENTED BY ITS MANAGING PARTNER - 8 M/S AKSHAYA BUILDERS, WESTON ARCADE, MARKET PO, VELLOORKUNNAM, MUVATTUPUZHA- 686673 REPRESENTED BY ITS MANAGING PARTNER. - 9 M/S AKSHAYA BUILDERS WESTON ARCADE, MARKET PO, VELLOORKUNNAM, MUVATTUPUZHA - 686673 REPRESENTED BY ITS MANAGING PARTNER - 10 M/S. DEENS CONSTRUCTIONS, FIRST FLOOR, DEENS BUILDING, PERINGALA P.O., ERNAKULAM - 684565 REPRESENTED BY ITS MANAGING PARTNER - 11 M/S PMR CONSTRUCTION COMPANY, MELMURI, MALAPPURAM - 676514 REPRESENTED BY ITS MANAGING PARTNER BY ADV MANU S., ASG OF INDIA ## **OTHER PRESENT:** SPL.GP.KV. MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.08.2022, ALONG WITH WP(C).15229/2022, THE COURT ON 17.10.2022, DELIVERED THE FOLLOWING: W.P.(C) Nos.15227 & 15229/2022 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** ## **WP(C) NO. 15229 OF 2022** ## **PETITIONER/S:** M/S. RAJI MATHEW & CO., AGED 56 YEARS PAMPLANIYIL, BHARANANGANAM P.O., KOTTAYAM DISTRICT, PIN - 686 578, REPRESENTED BY ITS MANAGING PARTNER, SHRI. RAJI MATHEW. BY ADVS. SANTHOSH MATHEW ARUN THOMAS VEENA RAVEENDRAN KARTHIKA MARIA ANIL SEBASTIAN PULICKEL KARTHIK RAJAGOPAL MATHEW NEVIN THOMAS LEAH RACHEL NINAN ABI BENNY AREECKAL KURIAN ANTONY MATHEW ## **RESPONDENT/S:** 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, TRANSPORT BHAWAN,1, PARLIAMENT STREET, NEW DELHI 110001. 2 THE SUPERINTENDING ENGINEER, PWD, NATIONAL HIGHWAY (CENTRAL) CIRCLE, VYTTILA, KOCHI, KERALA - 682019. 3 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, NATIONAL HIGHWAYS, THIRUVANANTHAPURAM, KERALA- 695033. 4 THE REGIONAL OFFICER, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, THIRUVANANTHAPURAM, KERALA-695033. W.P.(C) Nos.15227 & 15229/2022 -4- - 5 SENIOR FINANCE OFFICER, CE, NATIONAL HIGHWAYS, THIRUVANANTHAPURAM, KERALA- 695033. - 6 DEPUTY SUPERINTENDING ENGINEER, NATIONAL HIGHWAYS (CENTRAL) CIRCLE, VYTTILA, KOCHI, KERALA- 682019. - 7 M/S AF INFRASTRUCTURE PVT LTD, 2ND FLOOR, ROYALE PLAZA, BRIDGE ROAD, ALUVA 683101 REPRESENTED BY ITS MANAGING PARTNER. - 8 M/S VKJ INFRASTRUCTURES, V/35, VARAPETTY P.O., KOTHAMANGALAM-686691 REPRESENTED BY ITS MANAGING PARTNER. - 9 M/S THERUVATH BUILDERS, VIII/240, THERUVATH BUILDINGS UZHAVOOR P.O., KOTTAYAM- 686634 REPRESENTED BY ITS MANAGING PARTNER. - 10 M/S AKSHAYA BUILDERS, WESTON ARCADE, MARKET PO, VELLOORKUNNAM, MUVATTUPUZHA- 686673 ,REPRESENTED BY ITS MANAGING PARTNER. - 11 M/S. DEENS CONSTRUCTIONS, FIRST FLOOR, DEENS BUILDING, PERINGALA P.O., ERNAKULAM 684565 REPRESENTED BY ITS MANAGING PARTNER. - 12 M/S PMR CONSTRUCTION COMPANY, MELMURI, MALAPPURAM-676514, REPRESENTED BY ITS MANAGING PARTNER. - 13 MR. PIOUS ANTONY, MANNANAL MATTAKKARA P.O., KOTTAYAM-686564. BY ADVS. MANU S., ASG OF INDIA ADVOCATE GENERAL OFFICE KERALA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.08.2022, ALONG WITH WP(C) 15227/2022, THE COURT ON 17.10.2022, DELIVERED THE FOLLOWING: W.P.(C) Nos.15227 & 15229/2022 -5- **'CR'** ## **JUDGMENT** Dated this the 17[th] day of October, 2022 The petitioner responded to Ext.P1 notice inviting tender (NIT) issued by the second respondent by submitting its bids. The third respondent later informed the petitioner that its bids were not admitted by the Technical Evaluation Committee. On the petitioner seeking clarification, it was informed that the bids were not admitted, on finding them to be technically non-responsive for insufficient bid capacity as per Clause 2.2.2.1 of the Request for Proposal (RFP). Immediately, petitioner sent clarificatory communication, pointing out that, calculated in accordance with Clause 2.2.2.1 of RFP, the petitioner’s bid capacity is above the bid value. In spite of the clarification, the respondent proceeded with the tender process. Hence, these writ petitions, seeking the following reliefs; W.P.(C) Nos.15227 & 15229/2022 -6- “ _(i) Issue a writ of mandamus or any other appropriate writ or order or direction, directing Respondents 2 to 6 to re-evaluate the bid capacity of the petitioner and allow the petitioner to participate in the financial bid of the tender invited through Ext.P1 tender notice._ _(ii) Call for the records leading to the issuance of Exhibit P2 and issue a writ of certiorari quashing the same to the extent that it rejected the petitioner's bid.”_ 2. Adv.Santhosh Mathew, learned Counsel for the petitioner contended that the petitioner’s bids were rejected based on a misinterpretation of Clause 2.2.2.1 of the RFP. As per Clause 2.2.2.1, the available bid capacity is to be calculated based on the formula; A x N x 2.5 - B + C. 'A' is the maximum value of heavy engineering works excluding the amount of bonus received, if any, in respect to EPC projects executed in any one year during the last five years. 'N' is the number of years prescribed for completion of work for which a bid is invited. ## W.P.(C) Nos.15227 & 15229/2022 -7- 'B' is the value of existing commitments/works for which the bidder has emerged as the winner of the bids or ongoing works to be completed during the period of completion of the works for which bid is being invited. ‘C’ is the amount of bonus received, if any, in EPC projects during the last five years. The flawed understanding of the Technical Evaluation Committee about the manner in which the factor ‘B’ is to be reckoned, is the reason for the wrong rejection of petitioner’s bids. Clause 2.2.2.1 is specific to the effect that for calculating the value of existing commitments only works for which appointed date/commencement date has been declared, or ongoing works to be completed during the period of completion of the works for which the bid is invited, need be reckoned. Contrary to this, the Technical Evaluation Committee calculated the value of all existing works. Value of the work for which appointed date/commencement date had ## W.P.(C) Nos.15227 & 15229/2022 -8- not been declared, as also the entire value of the ongoing work, without restricting the value to the period for which the bid is invited, viz; one year was taken into account. 3. As the petitioner is ousted from the tender process by adopting a calculation contrary to the terms RFP, this Court, in exercise of the power of judicial review should correct the illegality, is the argument. In support of the contention that writ courts are clothed with the power to interfere in contractual matters, attention is drawn to the Apex Court decisions in _**Tata Cellular v Union of India [(1994) 6 SCC 651]**_ , _**Jagdish Mandal v. State of Orissa [(2007) 14 SCC 517]**_ and _**Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Limited and another [(2016) 16**_ _**SCC 818]**_ . Finally it is submitted that, based on the interim order of this Court, a hard copy of the financial bid was submitted by the petitioner and opened by the respondent. As per the ## W.P.(C) Nos.15227 & 15229/2022 -9- information received, petitioner is the lowest bidder for the tenders. Hence, it will be public interest also to accept the bids and award the works to the petitioner. 4. Adv. K.V.Manoj Kumar, learned Senior Government Pleader appearing for the respondents, refuted the factual assertions and put forth the following submissions; Bids received pursuant to Ext.P1 Notices Inviting Tender were evaluated by the Technical Evaluation Committee consisting of experts. On such evaluation, the petitioner’s existing commitments were calculated as Rs.243.81 Crores, as against the petitioner’s calculation of 122.72 Crores only. Later the petitioner submitted a bid capacity calculation in which the existing commitment was shown as 74.29 Crores. As the existing commitment was found to be Rs.243.81 Crores, the Technical Evaluation Committee declared the petitioner’s bid as technically non- ## W.P.(C) Nos.15227 & 15229/2022 -10- responsive for want of qualifying bid capacity. The rejection of petitioner’s bid was thereafter notified as per Ext.P2. Thereupon the petitioner submitted Ext.R2(c) letter, requesting to review the decision rejecting its bid. Although such requests are impermissible, the third respondent considered the request and replied, stating that the claims raised in Ext.R2(c) letter are without basis and even then, specific comments have been called for from the members of the Evaluation Committee. The petitioner was also directed to furnish its existing commitment for all works, attested by the concerned Executive Engineers. The Evaluation Committee met thereafter, and after due deliberation, rejected the petitioner’s request. 5. Learned Government Pleader submitted that, the petitioner failed to submit the details of all ongoing works along with its bids. The details were collected from various wings of the W.P.(C) Nos.15227 & 15229/2022 -11- PWD and communicated under Ext.R2(g) letter of the Chief Engineer, KSTP. Ext.R2(g) revealed that the work of OPBRC package-I in Ernakulam-KottayamAlappuzha-Pathanamthitta District, valued at Rs.89,44,22,909.13 was not revealed by the petitioner. Further, value of the work, OPBRC package-II in Ponkunnam-Thoduppuzha and Munnar Top Station- Vattavada road, was shown as Rs.25.6 Crores against the actual value of Rs.83,40,04,837.91. The bid evaluation committee, after taking into account the above commitments, found the petitioner to be not qualified. 6. It is contended that this Court in exercise of power of judicial review is not expected to sit in judgment over the findings of a committee consisting of experts. Even otherwise, having authored the tender documents, the employer is the best person to understand and appreciate its requirements and accordingly interpret the terms of the tender documents. The W.P.(C) Nos.15227 & 15229/2022 -12- Constitutional Courts are not expected to venture into that area and even if the court comes to a different conclusion than that of the employer, it should refrain from interfering, unless the employer's conclusion is one which no prudent person can arrive at. In support of the contention, the decisions in _**Central Coalfields Limited and another v SLL-SML (Joint Venture Consortium) and others [(2016) 8 SCC 622]**_ , _**Silppi Constructions Contractors v Union of India and another [(2020) 16 SCC 489]**_ and the Division Bench judgment of our High Court in Writ Appeal No.942 of 2020 are pressed into service. 7. The erudite arguments advanced by the Counsel on either side gives rise to the question is whether the rejection of petitioner’s bid, based on Clause 2.2.2.1 of the RPF, warrants interference in exercise of the power vested with this Court under Article 226. For deciding this question, it is necessary to understand the ## W.P.(C) Nos.15227 & 15229/2022 **==> picture [23 x 9] intentionally omitted <==** meaning of the term BID capacity at Clause ## 2.2.2.1 of the RFP; **==> picture [160 x 11] intentionally omitted <==** _Bidders who inter alia meet the minimum qualification criteria will be qualified only if their available BID capacity is more than the total BID value (value as per Clause 1.1.1). The available BID capacity will be calculated as per following, based on information mentioned at Annexure-VI of Appendix-IA:_ _Assessed Available BID capacity = (A*N*2.5-B + C), Where_ _N= Number of years prescribed for completion of work for which Bid is invited._ _A = Maximum value of civil engineering works excluding the amount of bonus received, if any, in respect of EPC Projects executed in any one year during the last five years (updated to the price level of the year indicated in table at Note 3 below) taking into account the completed as well as works_ _in progress. The_ _**EPC projects** include turnkey project/ Item rate contract/ Construction works._ W.P.(C) Nos.15227 & 15229/2022 -14- _Amended as;_ _B = Value (updated to the price level of the year indicated in table at Note-3 below) of existing commitments, works for which the bidder has emerged as the winner of the bids or on-going works to be completed during the period of completion of the works for which BID is invited. For the sake of clarification, it is mentioned that works for which the bidder has emerged as the winner of the bids but LOA has not been issued as on the day before opening the financial bid shall be considered while calculating value of B._ _C = The amount of bonus received, if any, in EPC Projects during the last 5 years (updated to the price level of the year indicated in table at Note-3 below). Note:_ _1. The Statement showing the value of all existing commitments, works for which the contractor has emerged as the winner of the bids as given by the bidder and ongoing works as well as the stipulated period of completion remaining for each of the works listed should be countersigned by the Client or its Engineer-in-charge not below the rank_ ## W.P.(C) Nos.15227 & 15229/2022 -15- _of Executive Engineer or equivalent in respect of EPC Projects or_ _Concessionaire/Authorised Signatory of SPV in respect of BOT Projects and verified by Statutory Auditor._ _2. The amount of bonus received, if any, in EPC Projects should be countersigned by the Client or its Engineer-in-charge not below the rank of Executive Engineer or equivalent in respect of EPC Projects._ _3. The factor for the year for updation to the price level is indicated as under:_ |_Year_|_Year-1_|_Year-2_|_Year-3_|_Year-4_|_Yea_<br>_r-5_| |---|---|---|---|---|---| |_Updation_<br>_factor_|_1.00_|_1.05_|_1.10_|_1.15_|_1.20_| _The Bid capacity status of the bidder to be updated as on the day before opening the financial bids._ ” Going by the formula for calculation of the available bid capacity, factor ‘B’ (value of existing commitments) is to be arrived at based on the value of the works for which the bidder has emerged the winner or ongoing works to be completed during the period of completion of the works for which the bid is invited. Here the ## W.P.(C) Nos.15227 & 15229/2022 -16- petitioner’s contention is that the other factor ‘N’, ie, the number of years prescribed for completion of work for which bid is invited being one year, the value of ongoing works has to be reckoned by factoring and confining the value to the one year period. According to the petitioner, it had calculated the value of its existing commitments strictly in terms of the above clause. The respondents on the other hand, contends that, the intention being to reckon the value of all ongoing works of the bidder so as to assess the available bid capacity, the entire value should be taken into account. 8. This Court is now faced with the question whether to accept the interpretation of the bidder or that of the employer. The settled law on the point is that the courts should give precedence to the opinion of experts, unless their interpretation/decision is totally arbitrary or unreasonable. This is so, since the W.P.(C) Nos.15227 & 15229/2022 -17- authority inviting tender is the best judge of its requirements. In _**Silppi Constructions Contractors**_ , the Apex Court, after carefully analysing a plethora of precedents, held as under; “ _19_ _**.** This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of_ ## W.P.(C) Nos.15227 & 15229/2022 -18- _superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give_ W.P.(C) Nos.15227 & 15229/2022 -19- _way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible 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 shall deal with the present case.”_ In _**Afcons Infrastructure Ltd,**_ relied on by the petitioner, it is held that, even if the interpretation to a tender document given by the owner or employer of the project is not acceptable to the constitutional courts, that by itself is not a ground for interference. W.P.(C) Nos.15227 & 15229/2022 -20- ## Recently, in _**N.G. Projects Ltd v Vinod Kumar Jain**_ _**[ (2022) 6 SCC 127]**_ , the legal position was reiterated in the following words; “ _**23.** In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the_ ## W.P.(C) Nos.15227 & 15229/2022 -21- _parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work.”_ 9. In _**Tata Cellular**_ , the Supreme Court indicated the parameters within which the Constitutional Courts ought to confine its consideration while deciding the legality of the award of a contract. Being contextually relevant, paragraph 77 of the judgment is extracted hereunder; “ _**77.** The duty of the court is to confine itself_ _to the question of legality. Its concern should be:_ _1. Whether a decision-making authority_ _exceeded its powers?_ _2. Committed an error of law,_ W.P.(C) Nos.15227 & 15229/2022 -22- _3. committed a breach of the rules of natural justice,_ _4. reached a decision which no reasonable tribunal would have reached or,_ _5. abused its powers._ _Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:_ _(i) Illegality : This means the decisionmaker must understand correctly the law that regulates his decision-making power and must give effect to it._ _(ii) Irrationality, namely, Wednesbury_ _unreasonableness._ _(iii) Procedural impropriety._ _The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696],_ ## W.P.(C) Nos.15227 & 15229/2022 -23- _Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, “consider whether something has gone wrong of a nature and degree which requires its intervention”._ The Apex Court also mentioned two aspects of irrationality, other than Wednesbury unreasonableness which may require the court’s interference. Those aspects are (i) when the facts taken as a whole cannot logically warrant the conclusion of the decision maker and (ii), when the facts pointing to one cause of action is overwhelming, but a decision is taken the other way. In _**Jagdish Mandal**_ it was held that, judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and _mala fides_ and the purpose is to check whether choice or decision is made lawfully and not to check whether the choice W.P.(C) Nos.15227 & 15229/2022 -24- or decision is sound. In _**Central Coalfields - Limited and another v. SLL SML (Joint Venture Consortium) and others [(2016) 8 SCC 622]**_ , the Apex Court went one step ahead and held that, even if an administrative decision is taken deviating from the term of NIT, the court will not judicially review the decision unless it is found to be arbitrary, irrational, unreasonable, _mala fide_ or biased. Moreover, as held in _**Afcons**_ ## _**Infrastructure Ltd v Nagpur Metro Rail Corpn. Ltd**_ _**[(2016) 16 SCC 818],**_ the threshold of _mala fides_ , _viz_ ; the intention to favour someone or arbitrariness, irrationality or perversity, must be met before the constitutional court interferes with the decision-making process or the decision itself. Paragraph 15 of _**Afcons Infrastructure Ltd**_ reads as under; “ _**15.** We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements_ ## W.P.(C) Nos.15227 & 15229/2022 -25- _and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.”_ 10. As far as the instant case is concerned, there is no allegation of _mala fides_ or favouritism. Therefore, the question boils down to whether the decision of the Technical Evaluation Committee is so perverse and irrational that it warrants interference. In my considered opinion, even if the petitioner’s interpretation of Clause 2.2.2.1 is plausible, the specific stand of the employer being that its intention is to assess all existing commitments relating to ongoing works of the bidder, in order to assess the available bid capacity, the ## W.P.(C) Nos.15227 & 15229/2022 -26- rejection of petitioner’s bids cannot be termed, perverse or irrational. As cautioned by the Apex Court, this Court is not expected to sit in judgment over the employer’s decision and come to a different conclusion. Further, no interference is possible even if such a conclusion is arrived at, the scope of judicial review being to check whether the choice of decision was made lawfully and not whether the choice is sound. For the aforementioned reasons, the writ petitions are dismissed. **Sd/-** **V.G.ARUN JUDGE** scl/ W.P.(C) Nos.15227 & 15229/2022 -27- ## **APPENDIX OF WP(C) 15229/2022** ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE INVITING TENDER NO.05/SE/NH/CC/KOCHI/2020-21 DATED 02-02-2022 ISSUED BY 2ND RESPONDENT ON BEHALF OF 1ST RESPONDENT. Exhibit P2 TRUE COPY OF THE MAIL DATED 01-05-2022 SENT BY THE 3RD RESPONDENT TO THE PETITIONER. Exhibit P3 TRUE COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT DATED 01-05-2022 TO THE PETITIONER. Exhibit P4 TRUE COPY OF THE TENDER SUMMARY REPORT DATED 02-05.2022. Exhibit P5 TRUE COPY OF THE RELEVANT EXTRACTS OF THE REQUEST FOR PROPOSAL (RFP) DOCUMENT. Exhibit P6 TRUE COPY OF THE LETTER DATED 02-052022 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. Exhibit P7 TRUE COPY OF THE BID CAPACITY CALCULATION DONE BY THE PETITIONER. Exhibit P8 TRUE COPY OF THE LETTER DATED 02-052022 SENT BY THE PETITIONER TO THE 3RD RESPONDENT ALONG WITH THE CALCULATIONS FOR BID CAPACITY. Exhibit P9 TRUE COPY OF THE LETTER DATED 11/05/2022 OF THE PETITIONER ALONG WITH THE SUPPORTING DOCUMENTS TO THE 3RD RESPONDENT RESPONDENT EXHIBITS EXHIBIT R2(c) TRUE COPY OF THE REQUEST TO THE 3RD RESPONDENT, CHIEF ENGINEER TO REVIEW THE REJECTION EXHIBIT R2(e) TRUE COPY OF THE MINUTES OF THE EVALUATION COMMITTEE HELD ON 19.05.2022 ## W.P.(C) Nos.15227 & 15229/2022 -28- |EXHIBIT R2(a)|TRUE COPY OF RELEVANT PAGE OF CLAUSE| |---|---| ||2.2.2 OF RFP| |EXHIBIT R2(b)|TRUE COPY OF THE MINUTES OF THE| ||EVALUATION COMMITTEE| |EXHIBIT R2(i)|TRUE COPY OF THE RELEVANT PAGE OF| ||CLAUSE 3.2 OF RFP| |EXHIBIT R2(j)|TRUE COPY OF THE RELEVANT PAGE OF| ||CLAUSE 2.19,3.5 OF RFP| |EXHIBIT R2(h)|TRUE COPY OF THE COMPARATIVE STATEMENT| ||FOR EVALUATION OF RFQ-RFP BY THE BID| ||EVALUATION COMMIITTEE| |EXHIBIT R2(g)|TRUE COPY OF THE LETTER DATED| ||23.03.2022 OF THE CHIEF ENGINEER KSTP| |EXHIBIT R2(f)|TRUE COPY OF THE RELEVANT PAGE OF THE| ||BID SUBMITTED BY THE PETITIONER| |EXHIBIT R2(d)|TRUE COPY OF THE COMMENTS FROM THE| ||MEMBERS OF THE EVALUATION COMMITTE| |EXHIBIT R2(a)|TRUE COPY OF RELEVANT PAGE OF CLAUSE| ||2.2.2 OF RFP| |EXHIBIT R2(b)|TRUE COPY OF THE MINUTES OF THE| ||EVALUATION COMMITTEE| |EXHIBIT R2(j)|TRUE COPY OF THE RELEVANT PAGE OF| ||CLAUSE 2.19,3.5 OF RFP| |EXHIBIT R2(f)|TRUE COPY OF THE RELEVANT PAGE OF THE| ||BID SUBMITTED BY THE PETITIONER| |EXHIBIT R2(c)|TRUE COPY OF THE REQUEST TO THE 3RD| ||RESPONDENT, CHIEF ENGINEER TO REVIEW| ||THE REJECTION| |EXHIBIT R2(i)|TRUE COPY OF THE RELEVANT PAGE OF| ||CLAUSE 3.2 OF RFP| |EXHIBIT R2(e)|TRUE COPY OF THE MINUTES OF THE| ||EVALUATION COMMITTEE HELD ON| ||19.05.2022| |EXHIBIT R2(h)|TRUE COPY OF THE COMPARATIVE STATEMENT| ||FOR EVALUATION OF RFQ-RFP BY THE BID| ||EVALUATION COMMIITTEE| |EXHIBIT R2(d)|TRUE COPY OF THE COMMENTS FROM THE| ||MEMBERS OF THE EVALUATION COMMITTE| W.P.(C) Nos.15227 & 15229/2022 -29- ## **APPENDIX OF WP(C) 15227/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE NOTICE INVITING| |---|---| ||TENDER 04/SE/NH/CC/KOCHI/2021-22 DATED| ||21-01-2022 ISSUED BY 2ND RESPONDENT ON| ||BEHALF OF 1ST RESPONDENT.| |Exhibit P2|TRUE COPY OF THE MAIL DATED 30-04-2022| ||SENT BY THE 3RD RESPONDENT TO THE| ||PETITIONER.| |Exhibit P3|TRUE COPY OF THE COMMUNICATION SENT BY| ||THE 3RD RESPONDENT DATED 30-04-2022 TO| ||THE PETITIONER.| |Exhibit P4|TRUE COPY OF THE TENDER SUMMARY REPORT| ||DATED 30-042022.| |Exhibit P5|TRUE COPY OF THE RELEVANT EXTRACTS OF| ||THE REQUEST FOR PROPOSAL (RFP)| ||DOCUMENT.| |Exhibit P6|TRUE COPY OF THE LETTER DATED 30-04-| ||2022 SENT BY THE PETITIONER TO THE 3RD| ||RESPONDENT.| |Exhibit P7|TRUE COPY OF THE BID CAPACITY| ||CALCULATION DONE BY THE PETITIONER.| |Exhibit P8|TRUE COPY OF THE LETTER DATED 02-05-| ||2022 SENT BY THE PETITIONER TO THE 3RD| ||RESPONDENT ALONG WITH THE CALCULATIONS| ||FOR BID CAPACITY.| |RESPONDENT EXHIBITS|| |Exhibit R2(b):|The true copy of the minutes of the| ||evaluation committee| |ExhibitR2(c):|True copy the request to the 3rd| ||respondent,Chief engineer to review| ||the rejection.| |Exhibit R2(d):|True copy of the comments from the| ||members of the Evaluation Committee.| |ExhibitR2(e):|True copy of the minutes of the| ||meeting of the Evaluation committee| ||held on 19-05-2022| |Exhibit R2(f):|True copy of the relevant page of the| ||bid submitted by the petitioner| |ExhibitR2(i);|True copy of the relevant pageof| ||Clause 3.2 of RFP| ## W.P.(C) Nos.15227 & 15229/2022 -30- Exhibit R2(j): True copy of the revelant page of clause 2,19,3.5 of RFP Exhibit R2: True copy of relevant page of clause 2.2.2 of RFP Exhibit R2(G): True copy of the letter dated 23-032022 of the Chief Engineer KSTP PETITIONER EXHIBITS Exhibit P9 TRUE COPY OF THE LETTER DATED 11/05/2022 OF THE PETITIONER ALONG WITH THE SUPPORTING DOCUMENTS TO THE 3RD RESPONDENT