M/S SELEX SISTEMI INTEGRATI, SPA v. UNION OF INDIA & ORS

14. Mr.Rajive Sawhney, learned senior counsel appearing for the petitioner has submitted that Respondent Nos.[1] and 2 have violated the sacrosanct principles relating to acceptance of tender by suppressing facts relating to material defects in the commercial bid of the third Respondent inasmuch as no reasons or any justification has been given for accepting such non-responsive bid. It is urged by him that the commercial bid of the third Respondent is not firm and fixed since it has blanks at certain spaces and, therefore, should have been treated as incomplete. It is canvassed by him that the bid was conditional with riders and the acceptance of such a bid manifestly smacks of arbitrariness, unfairness and unreasonableness. It is his further submission that as per the conditions laid down in para 4.[2] of the „Integrity Pact‟ observations of the stipulation therein are mandatory and no relaxation is possible. When the bid is non-responsive and incomplete, it should have been treated as non-responsive.

15. It is worth noting that in the writ petition as well as in the submission certain stands have been taken with regard to acceptance of the technical bid. In the course of hearing, we categorically asked Mr. Sawhney, learned senior counsel as to how the issue of technical bid can be gone into at that stage. Learned senior counsel really failed to satisfy us on that count inasmuch as the technical bid was accepted long back and there was no protest by the petitioner. Everyone was satisfied that the technical bid of the third Respondent was in order. It needs no special emphasis to state that it is the considered position that after technical bid is accepted the commercial bid is opened. Therefore, we do not intent to advert to the submissions that have been raised, of course, to put the clock back. Hence, we have referred to the submissions of the learned counsel for the petitioner pertaining to the acceptance of the commercial bid by the Respondent Nos. 1 and 2. The learned counsel in favour of his submission pertaining to the issue that the commercial bid was non-responsive has commended us to the decisions in The Tata Power Company Ltd. & Anr. v. Union of India, 2009 (8) AD (DEL) 583, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., (2004) 7 SCC 166, Dilip Singh v. State of U.P. & Ors., JT 2009 (15) SC 201, W.B. State Electricity Board v. Patel Engineering Co. Ltd. & Ors., (2001) 2 SCC 451, P.K. Delicacies Pvt. Ltd. v. Union of India & Ors., 122 (2005) DLT 685 (DB), Siemens Public Communication Network Pvt. Ltd. & Anr. v. Union of India & Ors., (2008) 16 SCC 215, Sumitomo Chemical India Pvt. Ltd. v. Union of India & Ors., W.P.(C) No.4196/2010 (26th July 2010) (DB: Delhi High Court), Rakesh Kapoor v. Oriental Insurance Co. Ltd. & Anr, 91 (2001) DLT 677.

16. Mr. A.S. Chandhiok, learned Additional Solicitor General on behalf of the Respondent Nos. 1 and 2 submitted that the Respondent No.3 had qualified in the technical bid and for the said purpose he had placed reliance on clause 39(b) of the RFP. Mr.Chandhiok, learned Additional Solicitor General by abundant caution also argued that the acceptance of technical bid is absolutely correct. Be it noted, the learned Additional Solicitor General has canvassed many a aspect to show how the same is unimaginable but as noted earlier we have not taken note of the submissions of Mr. Sawhney in this regard. Similarly there is no necessity to deal with the counter submission as this is the agreed position that acceptance of technical bid was not an issue in the whole scheme of things at any point, otherwise the petitioner would have protested at that stage. He chose not to do so. After the short listing of the bidders, whoever qualified in the technical bid, the commercial bid was opened in the presence of others.

17. Mr. Chandhiok countering the submissions of Mr. Sawhney with regard to the non-responsive and incomplete commercial bid of the Respondent No.3 urged that the commercial proposals were opened on 12th August, 2009 in the presence of the representatives of all vendors and the complete package costs of the various proposals including that of Respondent No.3 were read out which were subsequently examined in detail by the CNC and as a result of a comprehensive valuation of the commercial proposal that the Respondent No.3 was found to be the L-1. It is urged by him that the proposal for the third Respondent carrying out the „D‟ level facilities by itself was in consonance with the requirements of RFP. Learned ASG would submit that the „D‟ level maintenance facility has to be provided to M/s BEL by the bidder. As the commercial bid would reflect that the third Respondent had the requisite „D‟ level maintenance capability and it is ready to provide the maintenance support, the same was duly evaluated by a team of experts and found them to be compliant with the requirements of the RFP. It is urged by him that the bidder had „D‟ level maintenance facility available in India, no cost component was incorporated in MTOT and it is an inclusive cost and, therefore, the bid was firm and fixed and not a conditional one with riders. Commenting on the fairness and transparency of procedure, it is proponed by Mr.Chandhiok that it was clearly mentioned by the Chairman to all the representatives of the bidders that the CNC would examine all the commercial clauses in detail and the L-1 bidder would be informed that the CNC, constituted as per DPP 2006, evaluated commercial bid and on the basis of the recommendations of the CNC, the Secretary (Defence Finance) and the Ministry of Finance accepted the said commercial bid. The learned Additional Solicitor General has urged that the commercial bid of the third Respondent by no stretch of imagination can be regarded as unresponsive just because certain columns were not filled up and as no cost impact was there. Once the total cost addition is less than that of the petitioner, there is no irregularity or illegality in accepting the commercial bid. Had it been stated otherwise with conditions or riders, the matter possibly would have been different. It is urged by him that in exercise of power of judicial review especially, pertaining to tender relating issues involve highly technical issues, a free play in the joints has to be allowed to the owners and the writ court should not ordinarily interfere. In support of the said decisions, he has drawn inspiration from Tata Cellular v. Union of India, AIR 1996 SC 11, G.B. Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153, Poddar Steel Coporation v. Ganesh Engineering Works, [1991] 2 SCR 696, AIR India Ltd. v. Cochin International Airport, (2000) 2 SCC 617, Siemens Public Communication Network Pvt. Ltd. (supra)and Larsen & Turbo Ltd. v. Union of India, 172 (2010) DLT 454 (DB).

18. Dr. A.M. Singhvi, learned senior counsel appearing for the Respondent No.3 submitted that the challenge to the acceptance of the technical bid of the third Respondent by the petitioner is of ulterior motive and, in fact, is an effort to bring an issue to the Court which had been put to rest long back and when such an attempt is made, the writ petition deserves to be thrown overboard on the said score. It is worth noting the learned senior counsel had argued that the technical bid has been appropriately accepted as there had been detailed scrutiny at every stage. We repeat at the cost of repetition that we will not enter into the said arena as at no point of time there was any protest by the petitioner and the matter travelled to this court after the commercial bid of the third Respondent was accepted.

19. It is contended by Dr. Singhvi that the bid submitted by the third Respondent is compliant of the essential conditions of RFP and on proper scrutiny it was treated lower than that of the petitioner. The evaluation has been correctly made by the CNC which is empowered under clause 32 of the RFP. It is urged by him that the price offered by the third Respondent was complete, firm and fixed and not in the realm of speculation. The criticism that there were blanks in the commercial bid of the third Respondent which would enable it to increase its bid at a later point of time was completely incorrect inasmuch as on a specific query made by the Respondent Nos.[1] and 2 on a specific query put forth by one of the bidders qua the „D‟ level maintenance facility, it had been clarified at the pre-bid meeting held on 14.2.2008 that the need was to have „D‟ level maintenance facility in India and if a particular vendor had the said facility, the same shall be validated by the nominated team. It was further clarified that only in a scenario wherein the bidder does not have „D‟ level maintenance facility in India then the same shall be provided to Bharat Electronics Limited by the Respondent Nos.[1] and 2. The „D‟ level maintenance capability of Tata Power SED was validated by TEC and a bare perusal and reading of the clarification would make it abundantly clear that the requirement of MTOT was to have „D‟ level maintenance capability and, accordingly, nothing was left blank in the pricing payable against MTOT by the third Respondent. On the contrary, it clearly stated that the Depot Level Maintenance would be carried out by the seller; the pricing table, MTOT is the cost of transferring the technology for maintenance to BEL and not the cost of providing the maintenance support. The Respondent No.3 and its vendors had the existing infrastructure and capability at the time of submission of the bid and the same has been evaluated in an appropriate manner regard being had to the terms of the RFP and the clarification provided by the third Respondent.

20. Meeting the stand with regard to seeking clarification from a bidder, it has been urged by Dr. Singhvi that the clauses in DPP-2006 and RFP enable the Respondent Nos. 1 and 2 to seek clarifications / ascertain as regards the reasonability of price bids and more so when the bid was in conformity with the DPP-2006 and all essential conditions of the RFP were fulfilled. It is urged by him that as per the process enumerated under DPP-2006, it allowed the CNC to record any kind of dissonance as per paragraph 49 of the DPP and if merited, clarification can always be sought from the bidder as it has been so stipulated in paragraphs 42, 49 and 51 of the DPP-2006 and the said procedure had been followed by the Committee. It is canvassed by him that a combined reading of the relevant clauses of DPP and RFP clearlys show that the CNC can go into the reasonability of an offer and have negotiations in such circumstances. It is further contended by him that when the essential conditions were fulfilled, there was no speculative bid, the space that was not filled up as it was mentioned that the MTOT shall be maintained by the vendor and it had no impact on the final cost and if total cost is taken into consideration it was less than 47 crores than the petitioner, the concept of judicial review moreso pertaining to defence contract, does not arise. It is propounded by him that the court should always keep the larger public interest in view and a judicial intervention would only be called for when there is a definite conclusion that overwhelming public interest requires interference or the action taken by the Respondent Nos.[1] and 2 is, per se, arbitrary, unreasonable and totally perverse. The learned senior counsel would contend that the State, its corporations and agencies are required to adhere to norms, standard and procedures laid down by them and cannot depart from them arbitrarily and though their decision is not amenable to judicial review, yet the court has to examine the decision making process, if the decision is not vitiated by malafides, unreasonableness and does not smack of arbitrariness and to that extent the scope of judicial review is limited. The learned senior counsel propounded that in the case at hand there has been total transparency and tested on the touchstone and anvil of every limb of Article 14 of the Constitution, it withstands keen scrutiny. To bolster his submission, he has placed reliance on Cochin International Airport Ltd. (supra) and Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1 and Siemens Public Communication Network Pvt. Ltd. (supra).

21. The controversy which has been portrayed on a larger canvass by the learned counsel for the petitioner and sought to be narrowed down fundamentally to the concept of public interest, really adverted to three core issues, namely, (i) whether the bid of the third Respondent was non-responsive to be ignored for consideration at the stage of commercial bid; (ii) whether the clarification sought from the third Respondent smacks of arbitrariness and vitiates the decision determining the said respondent as L-1; and (iii) whether the whole decision judged on the touchstone of the principles, namely, “allowing some play in the joints” and “involvement of public interest” is justified or deserves to be lanceted.

22. Before we proceed to scan the factual contours and move through the terrain of the real crux which has been astutely and assiduously pyramided and edificed by the learned counsel for the parties, we think it apposite to refer to certain authorities in the field. We think it seemly as Mr. Sawhney, learned senior counsel for the petitioner would urge that the whole decision making is absolutely vitiated and is bound to founder and collapse like a pack of cards and in oppugnation Mr. Chandhiok and Dr. Singhvi would submit that the decision arrived at by the competent authority falls within the essential power of flexibility bestowed on the owner regard being had to the field of contract which necessitates adaptability and thereby, in the ultimate eventuate, the decision stands on the terra firma presently to the authorities.

23. In Poddar Steel Corporation (supra), a two-judge Bench of the Apex Court has held as follows: “……As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.”

24. In Sterling Computers Ltd. V. M.N.Publications Ltd., (1993) 1 SCC 445 = AIR 1996 SC 51, the Apex Court, while dealing with the concept of judicial review in respect of contracts entered into on behalf of the State, had expressed the view as follows: -

25. In New Horizons Ltd. & Anr. v. Union of India & Ors., (1995) 1 SCC 478, the Apex Court in para 17 opined thus:

26. In Tata Cellular (supra), the Apex Court has laid down as follows: -

29. In Cochin International Airport Ltd. (supra), their Lordships expressed the view that the award of a contract, whether by a private party or by the State, is essentially a commercial transaction. It was held therein that when even some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 of the Constitution with great caution and should exercise it only in furtherance of public interest. Emphasis was laid, apart from legal point, on public interest. The Apex Court has observed that in the matters of award of contract, the larger public interest has to be kept in view and when it is vivid that public interest commands that there has to be interference, then the Court should interfere.

30. In M/s Moarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others, AIR 2000 SC 2272, the Apex Court held that if a term of the tender is deleted after the players entered into the arena, it is like changing the rules of the game after it had begun and, therefore, if the Government or the Municipal Corporation was free to alter the conditions, fresh process of tender was the only alternative permissible. By reason of deletion of a particular condition, the wider net will be permissible and a larger participation or more attractive bids could be offered.

31. In Centre for Public Interest Litigation & Another v. Union of India & Others, (2000) 8 SCC 606, after referring to a passage from Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1, it has been held thus:

32. In Patel Engineering Co. Ltd. (supra), the Apex Court emphasised on maintaining the sanctity and integrity of the process of tender / bid and also the award of a contract. Adherence to the instructions cannot be given a go-by as the very purpose of issuing rules / instructions is to ensure their enforcement, lest the rule of law should be a casualty.

33. In State of NCT of Delhi & Anr. v. Sanjeev (alias Bitto), (2005) 5 SCC 181, while dealing with the scope of judicial interference in matters of administrative decisions, the Apex Court has held that the authority must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.

34. In Laxmi Sales Corporation v. Bolongir Trading Co. & Ors., AIR 2005 SC 1962, the Apex Court disallowed the order passed by the High Court which had held that the rejection of the offer made by the second Respondent therein was arbitrary and unfair. The Apex Court took note of the fact that the necessary documents were not filed along with the tender form solely on the ground that the same were not mandatory. Thereafter, their Lordships proceeded to state that on a reading of the various conditions in the tender form and the annexures annexed thereto, it was quite clear that proof of turnover of the firm over the last two relevant years with supporting documents were to be filed.

35. In M/s. B.S.N.Joshi and Sons Ltd. V. Nair Coal Services Ltd., AIR 2007 SC 437, their Lordships reiterated the principles of judicial review which have been developed for interference in contractual matters. The Apex Court summarized the principles as follows: “(i) If there are essential conditions the same must be adhered to:

(ii) If there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully:

(iii) If, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing:

(iv) The parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance of another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction.

(v) When a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with.

(vi) The contractors cannot form a cartel. If despite the same their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority.

(vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint.”

36. In Jagdish Mandal v. State of Orissa and Others, 2007 (8) SCJ 359, the Apex Court opined that the power of judicial review in administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. It was further opined that when exercising the power of judicial review in the matters relating to tender or award of contract, certain special features should be kept in mind regard being had to the fact that a contract is a commercial transaction. Emphasis was laid on the fact that it is essential to consider whether the process adopted or the decision taken is so arbitrary or irrational that it could be said with certitude that no responsible authority acting reasonably and in accordance with the relevant law would have reached such a conclusion. In the said decision, the concept of public interest was reiterated.

37. In Reliance Energy Ltd. and another v. Maharashtra State Road Development Corpn. & Ors., (2007) 8 SCC 1, their Lordships laid emphasis on level playing field to all bidders and the reasonableness of the State action.

38. In Siemens Public Communication Networks Pvt. Ltd. (supra), it has been held as under: “….. A contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. In such cases principles of equity and natural justice stay at a distance. If the decisions relating to award of contracts is bonafide and is in public interest, Courts will not exercise the power of judicial review and interfere even it if is accepted for the sake of argument that there is a procedural lacuna.”

39. In Sorath Builders v. Shreejikrupa Buildcon Limited & Anr., (2009) 11 SCC 9, it was laid down that it was obligatory on the part of the bidder to submit his pre-qualification documents within the time schedule.

40. In Meerut Development Authority vs. Association of Management Studies, (2009) 6 SCC 171, it has been held as follows:

41. In Triveni Engineering & Industries Ltd. v. D.J.B. & Anr., 2009 (5) AD Delhi 265, the necessity to satisfy the essential pre-condition of the minimum eligibility requirement to participate in the tender and the nature of the necessity was dealt with and the Bench expressed the view that the nature of the project needed work experience and the petitioner had not satisfied the mandatory minimum eligibility criteria in respect of the work experience and was, therefore, not entitled to be considered.

42. Regard being had to the aforesaid decisions, we shall proceed to produce at what places there were blank spaces and whether leaving the space blank makes the bid non-responsive. To have a holistic approach, we produce the excerpts from the pricing table: EXCERPTS FROM THE PRICING TABLE

7 Cost of recommended period of training in India excluding the cost of travel, boarding and lodging. Details at Enclosure 3 ---- 0 0 0 0 0 0 0 ATM, Mobile ATC Included in Main Eqpt 0 0 0 0 0 0 NavAIds 0 0 0 4,00,25,217 2,92,774 43,512

8 Cost of Training Aggregates/Aids. Details at Enclosure 0 0 0 0 0 0 0 ATM, Mobile ATC Included in NavAIds 0 0 0 5,25,50,630 9,45,814 283,881 9 Cost of Technical Literature. Details at Enclosure 4. ---- 0 0 0 0 0 0 ATM, Mobile ATC, AFLS, Mobile AFLS Included in NavAIds 9,83,640 1,01,791 95,452 Total Cost. 472,73,77,700 1,26,40,265 1,11,57,376 10,22,570 165,98,87,140 2,99,91,393 2,37,49,686

12 Amount for: Excise Duty* Rs 46,71,95,989 Sales Tax/VAT** Rs 46,33,08,089 Service Tax*** Rs 12,61,43,972 Service Tax**** (for Civil construction) Rs 8,76,83,144 Freight and Transit insurance cost Included in the main equipment price Octroi/Entry Tax Extra, as applicable

43. On a perusal of the above table, it is luculent that costs in the price table which have not been specifically mentioned by the third Respondent are either attached separately as enclosures or are included in the main equipment they are:

(i) Cost of Recommended period of training in India excluding the cost of travel, boarding and lodging.

(ii) Cost of Training Aggregates/Aids.

(iii) Cost of Technical Literature.

(iv) Freight and Transit insurance cost.

44. We have produced the aforesaid tabular charge from the original file to appreciate what has been left blank and what has been mentioned by the third Respondent. The question that emanates for consideration whether leaving the space blank really makes the bid non-responsive. On a proper scrutiny, it is discernable that the cost of MTOT for „D‟ level maintenance was not specifically mentioned as it had been undertaken that said maintenance will be carried out by the seller. In this regard, it is imperative to appreciate what is the duty of the court, conditions of the contract or entering into contract. In this regard, we may profitably refer to the decision rendered in Union of India v. The Central India Machinery Manufacturing Co. Ltd. and others, AIR 1977 SC 1537, their Lordships, while dealing with the construction of a contract, expressed thus- “29…… A correct construction, in turn, depends on a reading of the Standard and Special conditions as a whole. It would not be proper to cull out a sentence here or a subclause there and read the same in isolation. What is required is not a fragmentary examination in parts but an overall view and understanding of the whole. Again, it is the substance of the documents constituting the contract, and not merely the Form which has to be looked into.

30. The real intention of the contracting parties is primarily to be sought within the four corners of the documents containing Standard and Special Conditions of the Contract……” [emphasis supplied]

45. In M/s Hindustan Shipyard Ltd. V. State of Andhra Pradesh, AIR 2000 SC 2411, the Apex Court has also emphasized the need of looking into the substance and not merely the factum of the contract. Their lordships also stated that the terms and conditions of the contract should be read as a whole.

46. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel & Ors., AIR 2006 SC 3304 their Lordships expressed thus- “31. In Delta International Ltd. v. Shyam Sundar Ganeriwalla [(1999) 4 SCC 545], this Court noticed:

47. Tested on the touchstone of the enunciation of law laid down in the aforesaid decisions, the bid really does not become non-responsive. The blanks do not really affect. It is not a mercurial bid. It is not specious. It has no riders. It is not postulated by conditions. It is clear, scrutinisable, discernible and all comprehensive. If the tender document is read as a whole, it will be clear as day that the Respondent No.3 had really not left out anything which could remotely be called substantial to make the bid non-responsive. It has been categorically stipulated that MTOT would be borne by the seller which clearly conveys that no additional expenditure is involved. By appreciating the tender document in entirety, it cannot be said that there has been non-adherence to the norms or the Rules. In fact, there has been no deviation. Needless to say, while exercising jurisdiction under Article 226 of the Constitution of India in a matter relating to award of tender, the Court would not ordinarily interfere unless it finds that the authorities have acted in a totally arbitrary or a perverse manner or, for that matter, the ultimate determination in awarding the contract is wholly unreasonable and cannot be conceived by a prudent man. There cannot be any dispute that certain amount of play in the joints has to be given to the State authorities as they are in the best position to judge the nature of the contract, the capabilities and various other concomitant factors. Being of this view, we hold that the bid of the Respondent No.3 cannot be treated as a non-responsive bid deserving nonconsideration.

48. Learned counsel for the petitioner, as we have indicated hereinbefore, has submitted that the authorities could not have discussed with the Respondent No.3. The said submission, though on a first blush looks quite attractive, yet on a keener scrutiny, has to pale into insignificance. The respondent authorities had not negotiated with the Respondent No.3. The clarification sought was with regard to the rate by way of abundant caution. It was in the realm of fiscal interest. In our considered opinion, this would come in the allowance of a play in the joints. Thus, no exception can be taken to the same.

49. Keeping in view the aforesaid facts, it is also to be seen whether the decision is so unreasonable or perverse that the same deserves to be axed in exercise of power of judicial review. In this context, we may profitably reproduce a passage from Reliance Airport Developers (P) Ltd. v. Airports Authority of India & Ors.,

50. Presently, we shall advert to the comparative costs of the commercial offers of the bidders as produced in the original file are as follows:

┌─────────────────────────────────────────────────────────────────────────────────────────────────┐
│        Sl. No.                   Vendor                       Cost of Commercial                │
│                                                                 Proposal (Rs.)                  │
├─────────────────────────────────────────────────────────────────────────────────────────────────┤
│           1.      M/s Tata Power                             1094, 79, 64, 039.00               │
│           2.      M/s Selex SI                               1141, 86, 01, 780.00               │
│           3.      M/s BEL                                    1315, 28, 82, 034.00               │
│           4.      M/s Jupiter Strategic Technologies         1959, 41, 43, 065.00               │
│           5.      M/s Terma                                  1959, 41, 43, 065.00               │
│           6.      M/s PET Aviation                           2235, 17, 43, 053.00               │
│ WP(C) No.13478/2009                                                     Page 41 of 42           │
│                                                                              2011:DHC:5090-DB   │
└─────────────────────────────────────────────────────────────────────────────────────────────────┘

51. From the aforesaid chart, it is clearly demonstrable that the proposal of Respondent No.3 is the lowest at Rs.1094.79 Crores as against the commercial proposal of the Petitioner being 4% higher at Rs.1141.86 Crores. After taking into account the dimensions of each airfield and the per-meter cost-rates given in the commercial proposal, the final total project cost of Respondent No.3 works out to Rs.1219.99 Crores. Thus, the final negotiated cost of the Petitioner‟s proposal is Rs.66.21 Crores higher than that of Respondent No.3. Ergo, the public interest lies in ensuring that procurement is effected at the lowest possible cost to the State exchequer.

52. Ex consequenti, we are of the opinion that taking into account the parameters stipulated in the RFP and pre bid for determination of lowest tenderer, the decision of Union of India cannot be flawed. Resultantly, the writ petition, being sans merit, stands dismissed without any order as to costs.

CHIEF JUSTICE SANJAY KISHAN KAUL, J. MANMOHAN, J. SEPTEMBER 30, 2011 Pk/dk