ERA INFRA ENGINEERING LIMITED v. DELHI DEVELOPMENT AUTHORITY & ANR
Delhi High Court·08 Jan 2010·2010:DHC:50-DB
BADAR DURREZ AHMED; VEENA BIRBAL
WP (C) 7529/2009
2010:DHC:50-DB
administrativeappeal_dismissedSignificant
AI Summary
The Delhi High Court held that the DDA's rejection of the petitioner's lowest bid and recall of the tender was a valid exercise of administrative discretion not liable to judicial interference absent arbitrariness or illegality.
Full Text
Translation output
HIGH COURT OF DELHI
JUDGMENT
delivered on: 08.01.2010
WP (C) 7529/2009 ERA INFRA ENGINEERING LIMITED ... Petitioner - Versus - DELHI DEVELOPMENT AUTHORITY & ANR ... Respondents Advocates who appeared in this case:- For the Petitioner : Mr Manoj K. Singh For the Respondents : Mr Rajiv Bansal
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON’BLE MS. JUSTICE VEENA BIRBAL
1. Whether Reporters of local papers may be allowed to see the judgment ? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported in Digest ? YES BADAR DURREZ AHMED, J
I. Reliefs sought
1. The petitioner is praying for the quashing of the letters dated 03.02.2009 and 05.02.2009, whereby, the Delhi Development Authority (DDA) informed the petitioner that its tender had been rejected and that they (DDA) had decided to recall the tender. The petitioner is aggrieved by the fact that despite its price bid being the lowest (L-1) for the project, the same was rejected and, that too, at a belated stage and without assigning any 2010:DHC:50-DB a direction from this court that the turnkey project in question be awarded to the petitioner and also that an independent agency be asked to investigate the matter.
II. The facts
2. Before we go into the questions that arise for consideration, an examination of the facts of the case is necessary. On 24.06.2007, the DDA, through a notice published in the Hindustan Times, invited ―Expression of Interest‖ from interested agencies in respect of DDA‘s project of constructing 50,000 multi-storeyed houses in the next five years using fast mode of construction ―like pre-fab construction technologies on turn-key basis.‖ It was also indicated that the job shall comprise of planning, designing and construction of houses with specified services and that the technology to be used shall be ―fast and cost-effective‖ and shall ―conform to NBC of India and relevant BIS codes.‖ The ‗Expression of Interest‘ was invited from those agencies who wished to participate in designing, tendering process for first lot of 10,000 houses per year for next five years to be constructed primarily in Narela, Rohini, Dwarka or any suitable place in Delhi. Era Infra Engineering Ltd., the petitioner herein, expressed its interest in the turnkey project through its letter of 31.07.2007. Alongwith the said letter, the petitioner also enclosed literature of pre-fab construction technology, namely, ELEMATIC and MIVAN. On 28.08.2007, the DDA shortlisted the petitioner alongwith others and requested them to make a presentation on 01.09.2007, regarding the technology that they were going to use. The presentation was to cover, inter alia, the aspect of ―suitability of technology for low cost housing in Seismic Zone – IV‖.
3. On 14.01.2008, the DDA informed all the shortlisted contractors, including the petitioner herein, to submit their bids in the following manner:- ―Tender on Turn-key Basis in the prescribed form is invited for the following works by the Executive Engineer, Northern Division No. 12, DDA, Narela, Project Office on 12.03.2008, upto 3:00 PM on behalf of DDA from the contractors who are shortlisted agencies for EWS Houses Turkey Mega Project in three envelopes marked ‗A‘, ‗B‘ & ‗C‘ i.e. envelope ‗A‘ containing earnest money of Rs 1.57 crore (out of which not less than Rs 20 Lacs in the shape of demand draft/ call deposit receipt / receipt treasury challan/ Fixed Deposit Receipt of a Scheduled Bank guaranteed by Reserve Bank India, in favour of Sr. A. O. /CAU (North Zone)/DDA and balance in the shape of Bank Guarantee); envelope ‗B‘ for Technical Bid and envelope ‗C‘ for Financial Bid. The tenders will be received at Ground Floor, Vikas Minar, DDA, I. P. Estate, New Delhi-02 upto 3:00 PM on 12.03.2008. The envelope ‗A‘ and ‗B‘ (Technical Bid) shall be opened on the same day at 3:30 PM on 12.03.2008 in the Conference Hall at 5th Floor, Vikas Minar in the presence of intending tenderers or their authorized representatives. The agency may revise their specifications or modify their tendered documents and accordingly they should quote their modified rates in envelope ‗D‘ on or before the date fixed for opening of Financial Bid (to be intimated subsequently). Both the envelopes ‗C‘ and ‗D‘ shall be opened before the bidders, who would be present on the date of opening of Financial Bid.‖
4. A corrigendum was issued on 16.01.2008 making certain changes in the schedule. The petitioner purchased the tender documents for Rs 20,000 on 11.02.2008. The tender documents contained the Notice Inviting Tender (NIT) pertaining to construction of 50,000 EWS houses in Dwarka, Rohini and Narela, Delhi (24,460 EWS + 21,900 LIG houses) as a turn-key project. The estimated cost of the project was Rs 1378 crores and the time for completion was 60 months. The method of submission of tender, inter alia, stipulated:- ―The envelope containing Earnest Money and Bids (Technical & Financial Bid) shall be submitted simultaneously on due date. Only Technical Bid shall be opened on the due date whereas Financial Bid shall be kept sealed. Later on, a date shall be fixed for opening of the Financial Bid and bid of only those contractors whose technical bids are found acceptable by the Technical Board comprising EM/DDA as Chairman, CE (QAC), CE (HQ), CE (NZ), CE (Rohini), CE (Design), CE (Elect.), Chief Architect, Director (LS), Director (Hort.), Addl. Commr. (Plng.) as Members & SE(P)-III/(NS) as Member Secretary, shall be opened. Those bidders whose Technical Bids are found acceptable would be asked to submit revised financial bid plus or minus over the previous bid they had already quoted in the envelope ‗C‘ i.e. Financial Bid. The contractors may be asked to revise their specifications or modify their tendered documents and accordingly they would be asked to quote their revised rates, if any, in envelope ‗D‘. On the date fixed for the opening of the Financial Bid both the envelope ‗C‘ and ‗D‘ shall be opened before the bidders who would be present on the date of opening of the Financial Bid.‖
5. Four pre-bid meetings were held between 11.02.2008 and 13.06.2008, in the office of the Chief Engineer (NZ) wherein the contractors could seek clarifications regarding the NIT. The last date for submission of bids was 21.07.2008. The petitioner submitted its bid on the same date and the technical bids were opened. The fifth and sixth tender meetings were held on 05.08.2008 and 07.08.2008 respectively. On 05.09.2008, the Technical Evaluation Committee held a meeting to discuss the various issues regarding the technology to be used in the turnkey project. After a detailed discussion, it was ―unanimously‖ decided that 75% Prefab Technology would have to be financial bids in view of the above decision. On 15.09.2008, the petitioner submitted its revised financial bid. On the same date, the financial bids were opened and the petitioner was found to be L-1. A comparative chart of the price bids as given in the petition is set out below:- NAME OF THE PROJECT Opening Date: 15.09.2008 TENDER FOR ―CONSTRUCTION OF 50,000 EWS HOUSES IN DWARKA, ROHINI & NARELA, DELHI (24460 EWS – 21,900 LIG HOUSES)
┌─────────────────────────────────────────────────────────────────────────────────┐
│ HOUSES IN DWARKA, ROHINI & NARELA, │
│ DELHI │
│ (24460 EWS – 21,900 LIG HOUSES) │
│ Sl. Party Original Revised (Rs) Status │
│ No. │
├─────────────────────────────────────────────────────────────────────────────────┤
│ 1. Era Infra Rs.15,211,253,631.00 Rs.15,210,262,812.00 L.1 │
│ Engineering │
│ Ltd │
│ 5. IVRCL Rs.19,104,366,900.00 Rs.19,104,366,900.00 L.2 │
│ 3. B.G. Shirkey Rs.19,584,329,292.00 Rs,19,290,564,353.00 L.3 │
│ 2. Parsvnath Rs.23,825,761,250.00 Rs.23,825,761,250.00 L.4 │
│ Developers │
│ 4. ITDC Rs.36,958,280,000.00 Rs.28,938,968,000.00 L.5 │
└─────────────────────────────────────────────────────────────────────────────────┘
30. The appeal from Reliance Airports (Delhi) (supra) was dismissed by the Supreme Court in Reliance Airports (Supreme Court) (supra). However, the Supreme Court‘s observations on the power of judicial review in, inter alia, tender matters are instructive:-
“57. The present trend of judicial opinion is to restrict the
doctrine of immunity from judicial review to those class of
cases which relate to deployment of troops entering into
39,682 characters total
international treaties, etc. The distinctive features of some of
these recent cases signify the willingness of the courts to assert
their power to scrutinise the factual basis upon which
discretionary powers have been exercised. One can
conveniently classify under three heads the grounds on which
administrative action is subject to control by judicial review.
The first ground is ―illegality‖, the second ―irrationality‖ and
the third ―procedural impropriety‖. These principles were
highlighted by Lord Diplock in Council of Civil Service Unions
v. Minister for the Civil Service3 (commonly known as CCSU case).‖
31. In B.S.N. Joshi (supra), a decision relied upon by the learned counsel for the DDA, the Supreme Court categorically held that a contract need not be awarded to the lowest tenderer. The court held:-
“56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court‘s interference in such matter should be minimal. The High Court‘s jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record.‖
With regard to the scope of judicial review in tender matters, the Supreme Court summarized the principles as under:-
“65. We are not oblivious of the expansive role of the superior courts in judicial review. 66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the
1985 AC 374: (1984) 3 WLR 1174 (HL): (1984) 3 All ER 935 law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under:
(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 with 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.
67. Law operating in the field is no longer res integra. The application of law, however, would depend upon the facts and circumstances of each case….
68. The employer concededly is not bound to accept a bid only because it is the lowest…..‖
32. In Asia Foundation & Construction Ltd. (supra), the Supreme Court held that the object and purpose of permitting judicial review of the contractual powers of government bodies is to prevent arbitrariness or favouritism and that such power of judicial review is to be exercised in the larger public interest. The court also reiterated the principle that lowest bidder does not, ipso facto, have an enforceable right to get the contract. The relevant observations of the Supreme Court are as follows:- “10. Therefore, though the principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of a contract power has been exercised for any collateral purpose. But on examining the facts and circumstances of the present case and on going through the records we are of the considered opinion that none of the criteria has been satisfied justifying Court‘s interference in the grant of contract in favour of the appellant..…. As in our view in the matter of a tender a lowest bidder may not claim an enforceable right to get the contract though ordinarily the authorities concerned should accept the lowest bid….‖
33. Ghanshyam Das Aggarwal (supra) is a case where the petitioners‘ bids in a public auction held by the DDA for, inter alia, three plots were rejected by the Vice Chairman DDA even though the petitioners therein were the highest bidders. The rejection of the bids was questioned as being unreasonable and arbitrary. It was submitted on behalf of the petitioners therein that when the bids were made in an open auction and they were above the reserve price, there was no reason as to why the bids should not have been accepted. A division bench of this court found on facts that the criterion devised on the material available on record. The court found that the authority had been guided by the consideration of protecting the financial interest of the DDA so as to earn more revenue for it. Dismissing the challenge of the petitioners, the division bench held:- ―The decision cannot be said to be arbitrary or unreasonable. Merely because someone else sitting in the place of the Vice Chairman, DDA could have arrived at a different decision and might have been inclined to accept the bids would not be a ground for interfering in exercise of judicial review jurisdiction of the High Court with the discretionary decision taken by the authority…‖ While rendering the said decision, the court also referred to the earlier case of Dr Hotchandani & Ors v. DDA: CWP 250/1995 decided on 17.10.1995 in which it held as follows:- "The law is well settled that while exercising our writ jurisdiction, we are not to sit as an appellate authority over the decision of the authority like the Vice Chairman of Delhi Development Authority. We have only to examine whether the decision taken by the Vice Chairman, DDA is a reasonable decision, a decision which a reasonable man guided by relevant consideration could have taken in the circumstances of the case. It is pertinent to note that there is no allegation of mala fides made against the Vice Chairman- DDA. If the Vice Chairman was of the opinion having taken into consideration the relevant data placed before him, that the bids which were below a certain figure, did not reflect the mark trend of prices of land and the DDA was likely to gain on the plots being offered for sale by public auction once again, there is nothing wrong in it. The Vice Chairman has acted in the interest of the DDA. He has tried to save the DDA from the huge financial loss which was likely to result to the DDA in the event of all the bids being accepted. He was, therefore, justified in rejecting the bids relating to five plots including the one made by the petitioner. The terms and conditions of the auction also gave such an authority to the Vice Chairman. It is true that reasons must exist for rejecting a bid including the highest bid. The reasons do exist though they were not though not communicated (Kumari Shrilekha Vidhyarthi Etc. v. State of U.P.: AIR1991SC537)." (emphasis supplied) After taking note of the aforesaid observations in Dr Hotchandani (supra), the division bench, in Ghanshyam Das (supra), held that reasons for rejection must exist though they need not be communicated unless specifically directed by law. The court observed that the existence of reasons was a requirement of natural justice whereas the need to communicate those reasons to the aggrieved party would depend on the specific dictate of some stipulation, condition or provision of law. The court held as under:- ―…Firstly, the Rules and the Terms and Conditions of the Public Auction did not contemplate reasons for rejection of highest bid being communicated to the concerned bidders. There is a distinction between existence of reasons and assigning of reasons (see: Shrilekha Vidyarthi: AIR1991SC537). The former is a requirement of natural justice, the later is a dictate of law. Reasons need not be assigned in the sense of being communicated to a party unless required to be so done by any Rule having force of law. Secondly, the reasons could have been made available if asked for. Thirdly, the reasons for rejection though not communicated and though not asked for by the petitioners before filing the petitions have been made available in the Court in response to the show cause notice issued and it would serve no useful purpose if we may dispose of the petitions merely by directing the respondents-DDA to communicate the reasons to the petitioner. The reasons now having been made known to the petitioners, they have been heard thereon. Whatever they had to say on such reasons they have said and we have also tested the validity of the reasons and have found nothing unreasonable therewith. That is an end of the matter.‖
34. In Priya Enterprises (supra), another decision of a division bench of this court, it was observed that ―there is no denial of the legal position that even after examining the tenders submitted pursuant to the notice inviting tender, the department may refuse to award the work to any of the tenderers and initiate fresh exercise if valid reasons existed for such a course of action”. The court also held that it is at the discretion of the department and the department is the best judge to decide as to whether a bid of any tenderer is to be accepted at all or not. However, there must be fairness in the exercise of such a discretion.
35. Aman Hospitality (supra) is a division bench decision of this court which has been placed before us by the learned counsel for the petitioner as that is a case where a bid in a public auction had been rejected and the court set aside the said rejection and directed the DDA to accept the bid of the petitioner therein. Our attention was specifically drawn to the following passage in the said decision:- ―Merely, rejecting bid on the basis of the recommendation of the Finance (Member) without taking into consideration wide disparities and dissimilarities concerning the site, size and location of the hotel plot with that of site of shopping/office complex at Kondli, Gharoli, was a case of irrationality and, therefore, evidently the decision making process suffered from patent arbitrariness.‖ It was suggested that as in that case the rejection of the bid merely on the recommendation of the Finance Member was found to be ―irrational‖ and ―arbitrary‖, so also in the present case, rejection of the petitioner‘s bid only on the basis of the notings of the CVO, who, according to the learned counsel of the petitioner, was nobody to decide on technical matters, smacked of arbitrariness. We are unable to see a parallel between the the CVO in this case. In any event, it was not only the opinion of the CVO but also the observations of the CVC that led to the Lt Governor approving the proposal to reject the petitioner‘s bid and to recall the tender. The factual position in the two cases are also entirely different.
36. Although, Brahler ICS (supra) is a decision of a single bench of this court and, therefore, not binding on us, it was cited by the learned counsel for the petitioner for its persuasive value. However, on going through the said decision we find that the same was decided on entirely a different set of facts and on application of principles which would not apply to the present case. In Brahler ICS (supra), the challenge was to the action of respondents 1 to 4 ordering fresh ―price bids‖ in respect of supply of Digital Wireless Interpretation System in the Parliament Library Building. The petitioner therein also sought the grant of the said contract on account of its bid being the lowest and its fulfilling all the qualifications prescribed in the Notice Inviting Tender. The question involved in the said case was whether technical deficiencies could be pointed out or resorted to in order to call for fresh ―financial bids‖. The learned single judge was of the view that the pleas of the respondents therein that the bid of the petitioner was technically deficient would have been tenable and entertainable if the respondents were inviting fresh ―technical bids‖. In that case, it was not the fresh ―technical bids‖ which were being invited but it was the fresh ―price bids‖, which could only follow if the respondents had been fully satisfied with the technical bids. In that context, the calling of fresh ―financial bids‖, though on the ground of technical deficiency/alteration/inadequacy, was found to be arbitrary, unreasonable and unsustainable. It is obvious that Brahler ICS (supra) was not a case of recall of the tender but was one where fresh financial bids were being invited on the plea that the technical bid of the petitioner therein was technically deficient. The learned single judge was not called upon to decide the question as to whether the scrapping of the tender was justified[4]; a question which squarely arises in the present case. So, that case is of no help to the petitioner.
37. Finally, we would like to refer to the Supreme Court decision in Tata Cellular v. Union of India: (1994) 6 SCC 651, which is now regarded as the starting point for the modern statement of law as regards the scope of judicial review of administrative actions and, particularly, of actions in relation to tenders. The Supreme Court held:-
“70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the
―I am not required to consider the issue whether the scrapping of the tender by the Government is justified as no scrapping of tender has been done by the Government of India in the present case. Accordingly, the aforesaid judgment of Alcatel is not applicable to the present case. The Government is in fact going through the tender and in that view of the matter, it is certainly open to this Court to consider the decision of the Government to ask for fresh financial bids. Once the technical bid is cleared the, petitioner would be greatly prejudiced by the disclosure of its financial bids. The very purpose of confidentiality of a financial bid of a tender is defeated by the procedure sought to be adopted by the respondents 1 to 4.‖ best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review.‖ xxxx xxxx xxxx xxxx ―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 decision-maker must understand correctly the law that regulates his decisionmaking 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.‖ (emphasis supplied) After referring to several decisions, the Supreme Court observed as under:- “94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair[5] play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.‖
VIII. The legal principles applied to the present case
30. Applying the above principles, it is obvious that the petitioner cannot claim any enforceable right to be awarded the contract merely because it happens to be the lowest bidder. Normally, the lowest bidder or the highest bidder, as the case may be, ought to be awarded the contract. But this is not an absolute rule and the governmental authority can deviate from this and award the contract to someone other than the lowest or highest bidder, as the case may be. But, there must be good and valid reasons for this departure. The government body or authority may decide not to award the contract to the lowest bidder/ highest bidder or to anyone else and may decide to scrap the tender and/or call for fresh tenders. However, once again, there must be good reasons for doing so. In the present case, the petitioner‘s lowest bid has been rejected and the tender has been recalled. The DDA has acted well within its power having done provided there exist reasons, which are clearly discernible from the record, justifying the DDA‘s decision to reject the petitioner‘s bid and to call for fresh bids. It is not necessary that the reasons must be communicated to the petitioner at the outset, but it is sufficient, if the reasons exist. It is also clear that if the reasons are palpable and are not so outrageous in the ‗Wednesbury‘ sense, there would be no scope for judicial interference.
31. The policy decision with regard to the subject tender was that a fast mode of construction employing pre-fab technology on a turn-key basis would be used for the DDA‘s project of constructing 50,000 multi-storeyed houses. The entire emphasis from the very beginning was on the use of prefab technology. We find that the CVO in his note dated 11.11.2008 had specifically referred to the tender documents and, in particular, to item 3.1, which dealt with the RCC work. Item 3.[1] described the item of work as RCC in columns, beams, slabs and walls (pre-cast as well as cast-in-situ). The CVO had pointed out that the tender document itself was defective as it did not specifically indicate that it is only pre-cast technology which must be used. Thus, the tender document itself was contrary to the policy decision taken by the DDA to construct the said houses using pre-cast / pre-fab technology and not permitting casting in-situ. We agree with the observations of the CVO as well as the argument raised by the counsel for the DDA that this was a defect in the tender document itself.
32. The next aspect of the matter which also goes against the petitioner‘s claim is that at the initial stage when the technical evaluation committee had evaluated the technical bids on 05.08.2008, it was found that the petitioner‘s technology proposal for construction was at variance with the proposal submitted in the expression of interest and subsequent presentation and was, therefore, not acceptable. Attention was invited to paragraph 15 of the clarification issued on 19.06.2008 which reads as under:- ―15. It is clarified that the agencies were short listed based on the applications received in view of the Expression of Interest invited by DDA and also detailed presentation made by them for the technology subsequently. Any major deviation in the technology presented by them will not be accepted.‖
33. It is obvious that if there were no further consultations, the petitioners bid was straightaway liable to be rejected. However, there were deficiencies pointed out in respect of each of the tenderers and, therefore, all of them arrived at a ‗general consensus‘ that a detailed scrutiny of the technical bids may be dispensed with in view to save time as they were ready to carry out the necessary modifications in line with the tender provisions and subsequent clarifications. Two things emerge from the above circumstances. The first being that the petitioner‘s bid was initially liable to be rejected as was the case with the other tenderers. The second aspect is that the petitioner and the other tenderers remained in the tender process only because they had arrived at a ‗general consensus‘, which was surprisingly accepted by the technical committee, that a detailed scrutiny of technical bids be dispensed with in order to save time. We agree with the observations of the CVO that the dispensing with the scrutiny of technical bids was a serious lapse and that without proper evaluation, DDA would not get an opportunity to ensure that the technical specifications were met.
34. In the meeting of the technical evaluation committee held on 05.09.2008, it was reiterated that the basic requirement of DDA was to go for a faster mode of construction employing pre-fab technology. It was also noted that after discussing the salient features of the various technologies in the meeting it had agreed that the agencies whose tender is accepted shall ‗invariably‘ provide at least 75% of each category of structural members in pre-fab construction for the RCC of the superstructure. This was a change in the technology requirement and that, too, without being specific as to the extent of pre-fab technology. Only a lower limit of 75% was provided. All the agencies had agreed to the said common datum and that the same would be used for evaluation of the financial bids. The intending agencies were permitted to revise their financial bids to incorporate the said datum. It was pointed out in the minutes of the meeting held on 05.09.2008 that the same were ‗unanimously‘ accepted by all the agencies which included the petitioner and the other tenderers. As mentioned above, the tenderers were not initially technically compliant. They agreed amongst themselves to avoid a detailed scrutiny of technical bids in order to save time and a revised datum was agreed upon. The revised datum itself was not very specific with regard to the extent of pre-fab technology to be used in each category of structural members except to the extent that the agency whose tender would be accepted would invariably provide at least 75% pre-fab construction in respect of each category of structural members.
35. We agree with the learned counsel for the DDA that if there was no ‗consensus‘ amongst the agencies and the technical evaluation committee with regard to the giving up of the detailed scrutiny of technical bids and introduction of a revised datum, the petitioner‘s bid would have been rejected at that stage itself. It is only because of the said general consensus and revised datum that the petitioner continued in the tender process and submitted its revised financial bid. The sequence of events leading upto the rejection of the petitioner‘s bid need to be reiterated to get an overall picture. First of all, there was an invitation for ―Expression of Interest‖. The parties who responded gave presentations and thereafter, a short-list was prepared to whom the NIT was issued. Pre-bid meetings were held. Bids were submitted by the parties. The technical bids were evaluated and, as pointed out above, anomalies were detected. The bids of the petitioner as also of the other tenderers were all found to be non-compliant, for one reason or the other. A ‗general consensus‘ was arrived at amongst the tenderers to give up the detailed scrutiny of technical bids and to adopt a common datum without any further technical evaluation. Thereafter, the parties submitted their revised bids. On the opening of the revised financial bids, the matter came up before the CVO who prepared the two notes indicated above. The matter was, in fact, referred to the CVC whose observations have already been mentioned above. After receipt of the observations from the CVC, the matter was placed before the Vice-Chairman, DDA and then the Lt. Governor. The CVO‘s note dated 05.01.2009 suggested that it may be advisable to cancel the tender and start the whole process of tendering afresh with an unambiguous specification of the work, pre-qualification of the bidders, proper technical evaluation of the bids, etc. The Lt. Governor approved the said advice and, consequently, DDA rejected the petitioner‘s bid and cancelled the subject tender.
36. In this backdrop, it may be possible to argue that the CVC had not given any direction for cancellation of the tender and that the DDA could have taken ‗corrective measures‘ and gone ahead with the tender process. However, the course adopted by the DDA of rejecting the petitioner‘s bid and of recalling the tender was clearly one of the possible courses of action which any reasonable person or authority could have taken. It cannot be classified as one of those decisions which would be so outrageous as to be in total defiance of logic or moral standards so as to be termed as ‗Wednesbury unreasonableness‘ and thereby constituting irrationality. The principles of law discussed above clearly indicate that if a plausible view emerges from the records which substantiate the decision taken by the authorities, then the same ought not to be interfered with in judicial review. We have already indicated above that the course adopted by the DDA in rejecting the petitioner‘s bid and in recalling the tender was a possible and plausible course of action. Different persons may have acted in a different manner, but that would not enable this court to interfere with the decision taken by the DDA merely because more than one course of action may have been available. Surely, it cannot be said that when the CVO and, indeed, the CVC had raised more than the proverbial ‗eyebrow‘ and had gone ahead and specifically pointed to the defective tender document, serious lapse in dispensing with the detailed technical scrutiny and adoption of changed datum, albeit agreed upon unanimously, the DDA acted unreasonably or arbitrarily in taking the decision to recall the tender, the consequence of which was to reject the petitioner‘s bid.
IX. The final aspect: a fallacy
37. The final aspect of the matter which remains to be considered pertains to the contention of the petitioner that the financial bids as per clause 3(d) of PWD-6 of the NIT were to be opened only if the persons were found to be technically qualified and since the financial bid of the petitioner was opened this clearly implies that the petitioner was technically qualified. We are unable to accept this contention for the simple reason that the financial bids were opened in the circumstances which were totally different to what were contemplated under the original bid documents. In the meeting of the technical evaluation committee held on 05.08.2008, all the tenderers had arrived at a general consensus that a detailed scrutiny of the technical bids be dispensed with in order to save time. Thus, having agreed on the dispensing with of a detailed scrutiny, the petitioner cannot rely on the fact that because its financial bid was opened, it was technically qualified!
38. In any event, this argument on behalf of the petitioner is a well recognized propositional fallacy known as ‗affirming the consequent‘ and occurs when the antecedent in an indicative conditional is claimed to be true because the consequent is true; if A, then B; B, therefore A. An example of such a fallacy is:
1. If it's raining then the streets are wet.
2. The streets are wet.
3. Therefore, it's raining. The streets maybe wet because they may have been ‗watered‘ by tankers or a sewage manhole may have overflowed. There may be many reasons for the streets to be wet, one of them being rain. So, while the streets do get wet when it rains and the streets, as a fact, may be wet, it does not necessarily follow that it is raining. The argument of the learned counsel is also in similar vein. It runs as follows:-
1. If the technical bid is compliant then the price bid is opened.
2. The price bid is opened.
3. Therefore, the technical bid is compliant. As in the previous example, the conclusion is fallacious. The price bid may have been opened for other reasons, as in this case it was decided to skip the detailed technical scrutiny and change the datum and to consider revised price bids without going in for any fresh technical evaluation. Consequently, the fact that the price bid of the petitioner was opened does not necessarily mean that his technical bid was compliant.
X. Conclusion
39. The result of the foregoing discussion is that the writ petition is liable to be dismissed. It is dismissed. But, we leave the parties to bear their respective costs.