Mageba Bridge Products Private Limited & Anr. v. Rites Limited & Ors.

9. Mr. Krishnendu Datta, learned Senior Counsel appearing on behalf of the Petitioners, submits that the technical and financial bid submitted by Petitioner No. 1 are in strict compliance with the terms and conditions of the Digitaaly Subject Tender and the Petitioner No. 1 has successfully emerged as the L[1] bidder. He submits that being the L[1] bidder and „Class-I Local Supplier‟, Petitioner No. 1 had a legitimate expectation and enforceable right qua the issuance of the LoA and works contract in its favour.

10. It is argued by Mr. Datta that the exclusion of the Petitioner is against the spirit of the „Make in India‟ purchase preference policy. He argues that in any tender, it is important that the lowest bidder i.e., L[1] bidder is entitled to the award of the tender and an L-2 bidder cannot be asked to match the price bid of an L[1] bidder.

11. Mr. Datta submits that the actions of Respondent No. 1 in awarding the LoA and subsequent works contract to the L-2 bidder lacks transparency, is arbitrary and against the principles of natural justice and fair-play. He submits that the grant of LoA to L-2 bidder is an action which is a product of bias, favouritism and smacks of mala fide.

12. Mr. Datta draws the attention of this Court to Clause 12.14 of the Subject Tender which incorporates a „Make in India‟ purchase preference policy. He submits that in terms of the said clause, a „Class-I Local Supplier” would be given an opportunity to match the bid of the lowest bidder in the event the lowest bidder was not a „Class-I Local Supplier‟. However, if the lowest bidder was a „Class-I Local Supplier‟ the lowest bidder was eligible for the award of the LoA for the Subject Tender. He submits that „Class-I Local Supplier‟ has been defined under the Subject Tender as follows: “„Class-I Local supplier‟ means a supplier or service provider, Digitaaly whose goods, services or works offered for procurement, has local content equal to or more than 50%, as defined under this clause.”

13. It is submitted by Mr. Datta that the term „works‟ is defined under the „Scope of Work‟ of the Subject Tender. He therefore submits, that in order to qualify as a „Class-I Local Supplier‟, the bid would need to include over 50% local content in the items which were a part of the Scope of the Work of the Subject Tender i.e., the Project herein.

14. It is further submitted by Mr. Datta that the Subject Tender called upon each bidder to inter alia self-certify its qualification as a „Class-I Local Supplier‟. Pertinently, there was no format prescribed for the manner of such self-declaration. He submits that the Petitioner No. 1 submitted its bid on the bid portal with all requisite documents including a certificate issued by a CA certifying that its bid would satisfy the classification of a „Class-I Local Supplier‟ (the “Petitioner No. 1’s CA Certificate”).

15. Mr. Datta argues that the sensors to be provided for as per the terms of the Subject Tender are not domestically manufactured in India and therefore the Petitioner No. 1‟s CA Certificate specifically states that the local content with respect to the procurement and supply of sensors was under 50%. He submits that the Petitioner No. 1‟s CA Certificate creates a distinction between the supply component of its work and the services component of the work, in order to ensure transparency. It is his contention that the services to be provided by Petitioner No. 1 were domestic, which is a key part of its bid and therefore in view of Clause 12.14 of the Subject Digitaaly Tender, the Petitioner No. 1‟s CA Certificate duly states that it is a „Class-I Local Supplier‟.

16. Mr. Datta further argues that the Department for Promotion of Industry and Internal Trade, Ministry of Commerce & Industry (“DPIIT”) Office Memorandum dated 04.03.2021 (“2021 O.M.”), which states that service component of a procurement tender cannot be considered for selfdeclaration as a „Class-I Local Supplier‟, is contrary to the terms of the Subject Tender. He argues that the said 2021 O.M. was issued prior to the publication of the Subject Tender and if RITES intended to incorporate the terms of the 2021 O.M. into the present Tender, they had an opportunity to do so, however they chose not to do so. It is his argument that the Respondents reliance upon the 2021 O.M. is an afterthought to justify the award of the Subject Tender to Respondent No. 6. He argues that even if the same is not an afterthought, the 2021 O.M. is not applicable to the Subject Tender as the Make in India purchase preference is as per Order No. P- 45021/2/2017-PP(BE-II) dated 04.06.2020 (“June 2020 Order”) and that does not exclude services from the ambit of local value addition for the purposes of the Subject Tender. He further argues that the 2021 O.M. applies only to those tenders that seek procurement of goods only and not tenders which envisage a composite supply like the Subject Tender i.e., a tender wherein both the procurement and supply of certain identified goods as well as rendering identified services in are required, and therefore the 2021 O.M. does not apply to the Subject Tender.

17. Mr. Datta directs the attention of this Court to the writ petition wherein it is stated that Respondent No. 6 is not supplying genuine domestic Digitaaly products as claimed by it, and it is merely rebranding imported products to boost the local content for calculating the local content value of the total procurement value for the Subject Tender. The Petitioner No. 1 by way of Annexures P-6, P-7 and P-8 has attempted to draw a comparison between the products offered by Respondent No. 6 for the purpose of the Project and similar product manufactured by certain identified foreign manufacturers. For convenience, the comparison is being reproduced as under Digitaaly

18. Mr. Balendu Shekhar, learned Counsel for Respondent No. 1/RITES, submits that the allegations of arbitrariness, unreasonableness, unlawfulness are incorrect and states that there has been no deviation from the terms and conditions of the Subject Tender.

19. Mr. Shekhar, at the outset submits that the LoA was awarded to Respondent No. 6 on 06.04.2023, in a manner which is in accordance with the terms of the Subject Tender. Further, he submits that the work is already underway in terms of the LoA dated 06.04.2023, any withdrawal or cancellation of contract at this stage would be highly detrimental to the Project‟s successful completion, and therefore this Court should loathe to interfere with the award of the tender. Digitaaly

20. Mr. Shekhar submits that a tender process must comply strictly with the terms of the tender document and the author of the tender document is free to choose the bidder as per the applicable norms, policy and guidelines. He submits that in the instant case, the Petitioner No. 1 did not fulfil the criteria set out under the tender document and therefore its bid was accordingly rejected. He submits that the author of a bid document is the best interpreter of the same and ordinarily, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India should refrain from interfering with the same unless the decision taken is found to be mala fide or arbitrary. He places reliance upon the decision of the Apex Court in Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation, AIR 2016 SC 4305 in support of his argument.

21. It is the submission of Mr. Shekhar that in the present case, the Petitioner have not made any specific allegations of bias, favouritism or mala fide and mere allegations cannot be taken into account without any specific averments or evidence to back such claims.

22. It is submitted by Mr. Shekhar that Petitioner No. 1‟s bid failed to fulfil the criteria specified in Clause 12.14 of the Subject Tender and the „Make in India‟ policy of Government of India. He submits that Petitioner No. 1‟s CA Certificate, clearly states that the local content planned to be procured by Petitioner No. 1 is 26.08% of the total procurement price, therefore it cannot be considered to be a „Class-I Local Supplier‟.

23. It is further submitted by Mr. Shekhar that as per the 2021 O.M., it is clarified that services shall not be computed for ascertaining classification as Digitaaly a „Class-I Local Supplier‟ under the „Make in India‟ policy. Therefore, the Petitioner No. 1 would be considered to be a „Class-I Local Supplier‟, whereas the company to whom the LoA has been awarded is a „Class-I Local Supplier‟.

24. Mr. Rajshekhar Rao, learned Senior Counsel appearing for Respondent No. 6, submits that the Petitioners have approached this Court with unclean hands and pleaded a false and contradictory case. He submits that the Petitioners have incorrectly stated that Respondent No. 6 was awarded the LoA in respect of the Subject Tender. He disputes the assertion made by the Petitioner in the writ petition that Respondent No. 1 issued an LoA to Respondent No. 6 on 10.04.2023.He submits that Respondent No. 6 along with its subsidiary, one Encardio Rite Geosystems LLC (“ERGS”) formed a joint venture being M/s EREPL-ERGS JV (the “Joint Venture”) to bid for the tender, and it is the Joint Venture which was issued the LoA dated 06.04.2023 by Respondent No. 1 in respect of the Subject Tender. Pursuant to the issuance of LoA, the Joint Venture formed a company namely M/s EREPL-ERGS JV Pvt. Ltd. (“the JV Company”) which has signed an agreement dated 26.05.2023 with Respondent No. 1 to inter alia execute the Project.

25. Mr. Rao further submits that it is settled law that a High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India does not adjudicate upon questions of fact or matters relating to tenders/contracts. It is submitted that the case of the Petitioner is premised on unsubstantiated claims and the writ petition has been filed to delay and derail the execution of the Project. Digitaaly

26. It is submitted by Mr. Rao that the LoA was issued by Respondent No. 1 in favour of the Joint Venture on 06.04.2023. Thereafter, the writ petition was filed on 25.05.2023 and Petitioner No. 1 received notice in respect of the writ petition only on 22.07.2023. He asserts that during that time, various steps were taken that have created equity in the favour of Respondent No. 6 and the Joint Venture. He submits that the JV Company has through its bank issued various bank guarantees in the favour of Respondent No. 1, raised invoices, obtained third-party insurance, professional liability insurance, employers‟ liability, workers' compensation insurance etc. as per the terms of the Subject Tender. He argues that Respondent No. 6 through the Joint Venture has incurred various expenses and extended guarantees towards the Subject Tender. He further argues that Respondent No. 6 has commenced work towards the execution of the Project.

27. Mr. Rao submits that Respondent No. 8 introduced the Public Procurement (Preference to Make in India), Order 2017 (“2017 Order”) to promote manufacturing and production of goods and services in India. The said order sets out guidelines for tenders and eligibility criteria of bids for supply of goods, services and other works for servicing tenders in line with the objective of the „Make in India‟ policy. The 2017 Order creates a classification of bidders into 3 categories i.e., „Class-I Local Supplier‟; „Class-II Local Supplier‟ and „Non-Local Supplier‟, on the basis of the percentage of local content in the goods offered for procurement by bidders. The 2017 Order also sets out the manner in which „purchase preference‟ is to be given to different categories of suppliers. The 2017 Order further Digitaaly stipulates that in case of procurement tenders, when value is above Rs. 10,00,00,000 (Indian Rupees Ten Crore), „Class-I Local Suppliers‟ and „Class-II Local Suppliers‟ were required to submit a certificate from the statutory auditor or cost auditor of the bidder giving the percentage of local content. The 2017 Order was updated and modified periodically. Thereafter, the 2021 O.M. was issued wherein it stated that bidders offering imported products cannot claim eligibility as Class-I or Class-II Local Supplier (as the case may be)on account of services rendered for the purpose of calculation of local value addition. He therefore submits that Petitioner No. 1‟s CA Certificate states that only 26.08% of the goods procured by it,is local content, therefore Petitioner No. 1is not a „Class-I Local Supplier‟ as claimed, and Respondent No. 1 has rightly rejected its bid. He argues that Petitioner No. 1 seeks classification as a „Class-I Local Supplier‟ by taking into consideration the service component offered by it, which is not permissible as per the 2021 O.M.

28. Mr. Rao further submits that the certificate submitted by Respondent No. 6 classifying it as a „Class-I Local Supplier‟ has been prepared by its statutory auditor as required by the 2017 Order. However, he states that Petitioner No.1 has submitted a certificate which has not been issued by its statutory or cost auditor as required by the 2017 Order.

29. It is submitted by Mr. Rao that the Project under the Subject Tender is indivisible in nature and the Petitioner No. 1 is not entitled to any percentage of the work order. Further, he submits that due process has been followed by Respondent No. 1 in awarding the tender, and RITES has issued the LoA for Digitaaly the Project keeping in view the terms and conditions of the Subject Tender and the applicable policies made by the Government of India.

30. Heard learned counsels for the parties and perused the documents on record.

31. At the outset, this Court deems it appropriate to discuss the law regarding interference by a High Court with the decision of a tendering authority, in exercise of its powers under Article 226 of the Constitution of India. It has been observed consistently by the Apex Court in a number of judgments that the Court, in exercise of its extraordinary writ jurisdiction, may interfere in an administrative decision, if and only if the same is arbitrary, irrational, unreasonable, mala fide or biased. The Hon‟ble Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651, has stated as follows:

Digitaaly

32. The principle laid down in Tata Cellular (supra) has been followed subsequently in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517; Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay,(1989) 3 SCC 293; and Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium),(2016) 8 SCC 622.The Hon‟ble Supreme Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818,has summed up the position of law stated in the aforesaid judgments as under:

33. In Silppi Constructions Contractors (supra), the Hon‟ble Supreme Court has followed the aforesaid judgments and reiterated the principle that Courts should exercise a lot of restraint while exercising powers of judicial review in respect of tender matters pertaining to technical issues as the Courts lack the expertise to adjudicate upon technical issues. The relevant portion of the Judgment is reproduced as under:

34. It is also a settled principle that the authority which floats the tender and has authored the tender documents is the best judge regarding the interpretation of the same. The Apex Court in Agmatel India (P) Ltd. v. Resoursys Telecom, (2022) 5 SCC 362, has stated as under:

35. From the aforestated judgments, it is clear that the scope of interference by way of judicial review in commercial matters is extremely limited and can only be justified when a case of arbitrariness, unreasonableness, mala fide, bias or irrationality is clearly made out. Further, the Courts lack the requisite expertise to adjudicate upon technical issues which are often involved in commercial matters. In the absence of the same, the Courts should loathe to interfere with a tender process even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. It is also settled law that the best interpreter of a tender document is the author of the tender itself and Courts should exercise restraint in interfering with the interpretation of the tender document by the tendering authority.

36. At this juncture, it would be apposite to reproduce the relevant tender conditions pertaining to the application of the „Make in India‟ policy to the Subject Tender. Clause 12.14 of the Subject Tender reads as under: “12.14 In order to give effect to the policy of Government of India to encourage „Make in India”, price preference shall be accorded to Local supplier/Bidder in accordance with Order No. P- 45021/2/2017-PP(BE-II) dated 02.06.2020 on Public Procurement (Preference to Make in India) order 2017 as amended upto date of the Department of Industrial policy and Promotion, Ministry of Commerce and Industry.

RITES Ltd being a CPSU adopted the guidelines given in the abovementioned Order dated 04.06.2020 and the following shall be appliable in this tender:

1. Definitions: Digitaaly „Local Content‟ means the amount of value added in India which shall be the total value of the item procured (excluding net domestic indirect taxes) minus the value of imported content in the item (including all custom duties) as a proportion of the total value, in percent. „Class-I Local supplier‟ means a supplier or service provider, whose goods, services or works offered for procurement, has local content equal to or more than 50%, as defined under this clause. „Class-II local supplier‟ means a supplier or service provider, whose goods, services or works offered for procurement, has local content more than 20% but less than 50%, as defined under this clause. „Non-Local supplier, means a supplier or service provider, whose goods, service or works offered for procurement, has local content less than or equal to 20%, as defined under this clause. „L1‟ means the lowest tender or lowest bid or the lowest quotation received in a tender, bidding process or other procurement solicitation as adjudged in the evaluation process as per the tender or other procurement solicitation. „Margin of purchase preference‟ means the maximum extent to which the price quoted by a “Class-I local supplier” may be above the L[1] for the purpose of purchase preference. „Procuring entity‟ means RITES Ltd. „Works‟ means all works covered in the scope of work in this tender.

2. Eligible bidder in this tender: „Class-I local supplier‟/„Class-II local Supplier‟

3. Purchase Preference Digitaaly (a) In the procurements of goods or works which are divisible in nature, the „Class-I local supplier‟ shall get purchase preference over „Class-II local supplier‟ as well as „Non-Local supplier‟, as per following procedure: i. Among all qualified bids, the lowest bid will be termed as L[1]. If L[1] is Class-I local supplier‟, the contract for full quantity will be awarded to L[1]. ii. If L[1] bid is not a „Class-I local Supplier‟, 50% of the order quantity shall be awarded to L[1]. Thereafter, the lowest bidder among the „Class-I local Supplier‟ will be invited to match the L[1] price for the remaining 50% quantity, subject to the class-I local supplier‟s quoted price falling within the margin of purchase preference and contract for that quantity shall be awarded to such „Class-I local supplier‟ subject to matching the L[1] price. In case such lowest eligible Class-I local supplier‟ fails to matching the L[1] price or accepts less than offered quantity, the next higher „Class-I local supplier, withing the margin of purchase preference shall be invited to match the L[1] price for remaining quantity and so on, and contract shall be awarded accordingly. In case some quantity is still left uncovered on Class-I local supplier‟, then such balance quantity may also be awarded to L[1] bidder. (b) In the procurements of goods or works which are not divisible in nature, and in procurement of services where the bid is evaluated on price alone, the „Class-I local supplier‟ shall get purchase preference over „Class-II local supplier‟ as well as „Non-local supplier‟ as per following procedure: i. Among all qualified bids, the lowest bid will be termed as L[1]. If L[1] is „Class-I local supplier‟, the contract will be awarded to L[1]. ii. If L[1] is not „Class-I local supplier‟, the lowest bidder among the „Class-I local supplier‟, will be invited to match the L[1] price subject to class-I local supplier‟s Digitaaly quoted price falling within the margin of purchase preference, and the contract shall be awarded to such „class-I local supplier‟ subject to matching the L[1] price. iii. In case such lowest eligible „Class-I local supplier‟ fails to match the L[1] price, the „Class- I local supplier‟ with the next higher bid within the margin of purchase preference shall be invited to match the L[1] price and so on and contract shall be awarded accordingly. In case none of the „Class-I local supplier‟ within the margin of purchase preference matches the L[1] price, the contract may be awarded to the L[1] bidder. (c) “Class-II local Supplier” will not get purchase preference in any procurement, undertaken by procuring entity.

4. Applicability of purchase preference in this tender as per Para: 3(b)

5. Type of this Tender/Work: Works

6. Margin of Purchase preference: The margin of purchase preference shall be 20%.

7. The minimum local content for this tender shall be 20 % (Fill the value of minimum local content)

8. Verification of local content: a. The „class-I local supplier‟/‟Class-II local supplier‟ at the time of tender, bidding of solicitation shall be required to indicate percentage of local content and provide self-certification that item offered meets the local content requirement for „Class-I local supplier‟/ „Class-II local supplier‟, as the case may be. They shall also give details of the location (s) at which the local value addition is made. b. In cases of procurement for a value in excess of Rs. 10 Crores, the „Class-I local supplier‟/ „Class-II Digitaaly local supplier‟ shall be required to provide a certificate from the statutory auditor or cost auditor of the company (in the case of companies) or from a practicing cost accountant or practicing chartered accountant (in respect of suppliers other than companies) giving the percentage of local content. c. In case of false declaration by „Class-I local supplier‟/ „Class-II local supplier‟ or submission of false certificate, Banning of Business Dealings shall be done with defaulter as per the Guidelines given in Sub- Clause 11.2B. Note: Verification of local content shall be done during execution of work.”

37. As per the aforesaid clause, the Subject Tender gives effect to the „Make in India‟ policy of the Government of India, and therefore gives preference to local supplier/bidder in accordance with the June 2020 Order, which is a revision of the 2017 Order. The 2017Order sets out guidelines for tenders and eligibility criteria of bids for supply of goods, services and other works for servicing tenders in line with the objective of the „Make in India‟ policy. The 2017 Order creates a classification of bidders into 3 categories i.e., „Class-I Local Supplier‟; „Class-II Local Supplier‟; and „Non-Local Supplier‟. Clause 12.14 also stipulates that the 2017 Order as amended up to date would be applicable to the Subject Tender. Therefore, any subsequent amendments made to the 2017 Order at the time of issuance of the Subject Tender in October 2022 would be applicable to the Subject Tender. Accordingly, the June 2020 Order, including the amendment made through the 2021 O.M. would be applicable to the Subject Tender. The argument made by the Petitioners that the 2021 O.M. is inapplicable to the Subject Digitaaly Tender therefore lacks merit and is rejected. The relevant extracts of the 2021 O.M. are being extracted as under:

38. A comprehensive reading of Clause 12.14 of the Subject Tender, along with the 2017 Order, and its subsequent amendments through the June 2020 Order and 2021 O.M. establish the nature of the Subject Tender and the manner in which purchase preference is to be given under the Tender. As per the aforesaid clauses/orders/memorandums a „Class-I Local Supplier‟ means a supplier or service provider whose goods, services or works offered for procurement have a local content equal to or greater than 50% as defined. Similarly, „Class-II Local Supplier‟ means a supplier or service provider whose goods, services or works offered for procurement have a local content more than 20% but less than 50% as defined. The term “L1” has been defined as the lowest tender or lowest bid or lowest quotation received in a tender, bidding process or any other procurement solicitation Digitaaly as adjudged in the evaluation process as per the tender or other procurement solicitation.

39. Sub-clause (4) and (5) of Clause 12.14 of the Subject Tender make it clear that the Subject Tender is a procurement of works tender and the purchase preference to be followed under the Subject Tender is stipulated in sub-clause (3(b)) of Clause 12.14. As per the said provision, in the procurement of works which are not divisible in nature, the „Class-I Local Supplier‟ shall get purchase preference over „Class-II Local Supplier‟. It stipulates that if among all qualified bids, the L[1] bid is a „Class-I Local Supplier‟, the contract will be awarded to L[1]. However, the said provision further stipulates that if L[1] is not a „Class-I Local Supplier‟, the lowest bidder among the „Class-I Local Supplier‟ shall be invited to match the L[1] price and the contract shall be awarded to such „Class-I local supplier‟ subject to matching the L[1] price.

40. Sub-Clause (8) of Clause 12.14 of the Subject Tender provides that at the time of bidding, bidders are required to indicate percentage of local content and provide self-certification that the item offered meets the local content requirement for „Class-I Local Supplier‟ or „Class-II Local Supplier‟ (as the case may be). It further provides that in cases of procurement for a value in excess of Rs. 10,00,00,000(Indian Rupees Ten Crore), the bidder shall be required to provide the certificate of self-declaration from the statutory auditor of the company. Further, it stipulates that in case of false declaration by „Class-I Local Supplier‟ or „Class-II Local Supplier‟, the defaulter shall be dealt with as per „Guidelines on Banning of Business Dealing‟ annexed to the Subject Tender. There is also a „note‟ to sub-clause Digitaaly (8) of Clause 12.14 which provides that the verification of local content is to be done during the execution of work.

41. At this stage, it would be pertinent to look at the self-declaration certificates provided by both Petitioner No. 1 and Respondent No. 6. The relevant extracts of the Petitioner No. 1‟s CA certificate are reproduced as under for convenience:

42. The relevant extracts of Respondent No. 6 self-declaration certificate are reproduced as under: Digitaaly

43. From a comparative reading of the aforesaid certificates, it becomes clear that the total local content component by Petitioner No. 1 for the Subject Tender amounts to 26.08% of the total procurement price, whereas the total local content component by Respondent No. 6 for the Subject Tender amounts to 58% of the product value offered for procurement. The Digitaaly Petitioner No. 1 in its certificate has stated that as per Clause 12.14 of the Subject Tender, the amount of local content will be above 50% if the service portion of the works contract is taken into account, however as per the 2021 O.M., it is not permissible for a bidder to claim it is a „Class-I Local Bidder‟ by taking into account the services offered by it as local value addition.

44. Pertinently, the CA certificate furnished by Respondent No. 6 clearly states that it has been issued by the statutory auditor of Respondent No. 6, the CA certificate issued by Petitioner No. 1 only states that it has been issued by a chartered accountant and does not state that it has been issued by its statutory auditor or cost accountant, as is required as per the terms of the Subject Tender.

45. Upon a prima-facie reading of the two certificates, it is clear that Petitioner No. 1 cannot be classified as a „Class-I Local Bidder‟ as per the terms of the Subject Tender and the „Make in India‟ policy. It is also clear from a bare perusal of the aforesaid certificates that Respondent No. 6 can be classified as a „Class-I Local Bidder‟ and therefore will get preference to match the price of the L[1] bidder as per the terms and conditions of the Subject Tender, which is Petitioner No. 1 in the instant case. The LoA issued by RITES therefore has been issued in strict compliance with the terms and conditions of the Subject Tender and the relevant applicable policies of the Government of India.

46. The Petitioners have made allegations that Respondent No. 6 is not supplying domestic products and is merely rebranding imported products to boost its local content. At the same time, the Respondent No. 6 has alleged Digitaaly that the CA certificate issued by Petitioner No. 1 has not been issued by a statutory auditor or cost accountant as required as per the terms and conditions of the Subject Tender. The aforesaid allegations raise disputed questions of facts which cannot be adjudicated by this Court on the basis of evidence affidavit. It is settled law that the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India cannot look into disputed questions of facts [See: M.P. Power Management Co. Ltd. v. Sky Power Southeast Solar India (P) Ltd., (2023) 2 SCC 703].Therefore, this Court cannot look into the aforesaid allegations made by the parties.

47. It is also settled law that Courts lack the expertise to adjudicate upon technical issues [See: Silppi Constructions Contractors (supra)]. The Subject Tender also provides that verification of local content for the Project is to be done during the execution of the work and if it is found that a false declaration has been made by a bidder regarding its status as a „Class-I Local Bidder‟ or „Class-II Local Bidder‟, then such defaulter shall be dealt with in accordance with the „Guidelines on Banning of Business Dealing‟ as provided for under the Subject Tender. This Court therefore cannot in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution look into the allegations levelled by the Petitioners.

48. In the opinion of this Court, the decision taken by RITES to issue the LoA in favour of the Joint Venture of Respondent No. 6 and to enter into an agreement with the JV Company does not suffer from the vice of arbitrariness, unreasonableness, perversity or mala fide. Therefore, there is no case made out by the Petitioners for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to Digitaaly interfere with the Project and the Subject Tender. It is clarified that the tendering authority i.e., Respondent No. 1 shall verify the local content provided for the Project as per the terms and conditions of the Subject Tender, and if it is found that a false declaration has been made by Respondent No. 6, it shall take action in accordance with the terms of the Subject Tender.

49. With these observations, the petition is dismissed, along with pending application(s), if any. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE

JUDGE SEPTEMBER 21, 2023 Digitaaly