1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.41 OF 2010
Coastal Marine Construction &
Engineering Limited, 1st floor,
Haria's Dream Park, `A' Wing,
Mira-Bhayander Road, Mira Road (East),
Mumbai--401 107. ig : Petitioner
V/s.
1. Oil & Natural Gas Corporation Limited,
Engineering Services (Offshore),
4th floor, 11 High Sion-Bandra Link Road,
Sion (West), Mumbai--400 017.
2. Union of India, having their office at
Aayakar Bhavan, New Marine Lines,
Churchgate, Mumbai--400 020. : Respondents
....
Mr.Atul Rajyadhyaksha, Senior Advocate, i/b. Ashwin Shankar for the
petitioner.
Mr.R.A.Dada, Senior Advocate, with Ms Snehal Paranjpe, Mr.Zubair
Dada, Mr.Jayendra Kapadia and Mr.O.Mohandas i/b. Little & Co., for
respondent no.1.
....
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CORAM : J.N.PATEL & B.R. GAVAI, JJ.
Date of Reserving ) : 29.01.2010.
the Judgement. )
Date of Pronouncing) : 18.02.2010.
the Judgement. )
JUDGEMENT (Per B.R.Gavai, J.)
Though this Writ Petition has been filed seeking various reliefs,
including the ones, directing the respondents to correct the terms of the
Bid Evaluation Criteria, injuncting the respondents from rejecting the
Technical Bid submitted by the petitioner, an injunction restraining the
respondents from opening the Price Bids of various bidders and also an
injunction restraining the respondents from proceeding with the award of
the contract, the petitioner has restricted the claim in the petition only to
the decision of the respondents in holding the petitioner to be technically
disqualified for award of the contract in question.
2. The respondent no.1 had invited tenders for hiring of services
for geophysical survey and geotechnical surveys in Vashishtha, S1 &
Manik fields in deep water locations of East Coast of India. The main
condition of the tender document around which the dispute in the present
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petition revolves is as under:-
“A) Technical Criteria
The following vital technical conditions should be
strictly complied:1.0 Eligibility and experience of the bidder:
1.1(a)i) The bidder by himself should have minimum
two years experience as on opening date of tenderon the following-
ii) The Bidder should have executed at least one
number of contracts of following nature in last ten
years–For Part-I: Geophysical Survey
a) Bathymetry.
b) Sea Bed Survey
c) Magnetometer Survey
d) Sub bottom profiler (seismic) Sparker/Boomer
In deep water minimum 850 Mtrs. or above.
For Part II: Geo Technical Investigation
Collection & Analysis of cores in deep water
minimum 850 Mtrs. or above.1.1(b) In case the bidder is an Indian company/
Indian Joint venture company, the Indian company/
Indian Joint venture company or its technical colla-
borator/joint venture partner should meet the criteria
laid down above.1.1(c) Or bidder should be a 100% subsidiary
company of the parent company which itself meets
the experience and financial capability criteria as
stipulated in the BEC.::: Downloaded on – 09/06/2013 15:37:53 :::
41.2 In case the bidder is a consortium of companies,
the following requirement should be satisfied by the
bidder:a) The members of the consortium collectively
should satisfy the minimum experience requirement
as per para 2.1(a) above.”3. Though, according to the petitioner, since in the notice inviting
tenders there is a provision regarding pre-bid conference wherein
exceptions/deviations, if
ig any, to Tender Terms, Conditions &Specifications were to be sorted out, the petitioner has perused the matter
insofar as the requirement of executing the work in water having
minimum depth of 850 mtrs. is concerned and, accordingly, a prayer to
that effect was made in the petition. However, since the petitioner has
submitted its bid after entering into a Technical Collaboration Agreement
with Williamson & Associates, USA, and Carmacoring S.r.l, Italy, the
petitioner has not agitated its grievance regarding the validity of the said
condition and has restricted the claim in the present petition only insofar
as their grievance regarding not finding the petitioner’s collaborators’
technical experience sufficient enough to satisfy the condition regarding
technical qualification.
4. We have heard Mr.Rajyadhyaksha, the learned senior counsel
appearing on behalf of the petitioner, and Mr.Dada, the learned senior
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5counsel appearing on behalf of the respondent no.1 at length.
5. Mr.Rajyadhyaksha, the learned counsel appearing on behalf of
the petitioner, submits that though voluminous documents were submitted
by the petitioner in support of the experience and eligibility of their
collaborators, the said documents are not taken into consideration on a
flimsy and unviable grounds. He submits that even according to the
respondents, the petitioner could have independently submitted its bid for
part of the work i.e. Geophysical Survey or Geo Technical Investigation
independently. He submits that insofar as Part I of the work i.e.
Geophysical Survey is concerned, in response to the query made by the
respondent no.1, the petitioner was required to submit the completion
certificate against contract no.144695 between Tyco Telecommunications
(US) Inc. and Williamson & Associates Inc. or work order/contract,
report/completion certificate against any other project listed in the bid
document and executed by the bidder or his technical collaborator, to
conform with Bid Evaluation Criterion (BEC) clause 2.1(a)(i) of Part I.
He submitted that in response to the said query, the petitioner had
submitted following documents:-
“i. Work Completion certificate issued by TYCO
Telecommunication (US) INC having their::: Downloaded on – 09/06/2013 15:37:53 :::
6address at 412 Mount Kemble Avenue,
Morrisstown, NJ 07960 which is placed inAnnexure 2 to Petitioners clarification letter
referred to above.
ii. Copy of the report for the Manus Basin Geo-
physical Survey for Placer Dome Asia Pte
Ltd. Portion of report has been high lighted
for the sake of convenience to show the name
of Williamson & Associates, Equipmentsused and to show water depth wherever
necessary which is placed in Annexure-3 of
Petitioners clarification letter referred toabove.
iii. Copy of an article written by US Geological
Survey personal which describes a deepwater survey completed by Williamson in
1990. The article clearly states that Williamson
completed the survey and it also states that
it is based on a USGS report. The copy ofarticle report is annexed hereto and marked
Annexure-4 to Petitioners clarification letter
referred to above.iv. A list of survey containing the contracts
details executed in deep water. The contract
details in blue are the contracts executed in
deep water as stated in the cover email dated
11th December 2009. Copy of both the lists
attached, together with forwarding email
message, hereto and mark Annexure-5 to::: Downloaded on – 09/06/2013 15:37:53 :::
7Petitioners clarification letter referred to
above.”Mr.Rajyadhyaksha submitted that a perusal of the aforesaid documents
would reveal that the petitioner squarely satisfies the criteria laid down as
per the Bid Evaluation Criteria clause 2.1(a)(i) and (ii) or 2.1(b).
6. Insofar as Part II of the work i.e. Geo Technical Investigation is
concerned, it is submitted that the petitioner had entered into
collaboration with Ms/.Carmacoring srl, Italy, and following documents
were submitted by the petitioner to establish that the said
M/s.Carmacoring complied with the eligibility criteria:-
1. Project for Impresub
a) Carmacoring Company Profile mentions that
Carmacoring carried out the geotechnical
survey in the year 2006.
b) Collaboration Agreement between Car.Ma
and Impresub.
c) Daily Report of the Project dated 13.4.2006.
d) Certificate dated 9.5.2006 from Impresub.
e) Carmacoring Report of the Geotechnical ::: Downloaded on - 09/06/2013 15:37:53 ::: 8 Survey carried out. 2. Project for ISMARa) Carmacoring Company Profile mentioning
that Carmacoring carried out the geological
survey in the year 2008.
b) Report of the Project.
c) Certificate dated 30.11.2009 from ISMAR.
3. Project for Gas S.r.l.
a) Certificate dated 5.10.2007 issued by the
Managing Director of Gas s.r.l. establishing
that Carmacoring carried out coring.
The learned counsel submits that the aforesaid documents would clearly
establish that the petitioner’s collaborator M/s.Carmacoring S.r.l. has
possessed the necessary qualification. He submits that refusal to take into
consideration the aforesaid documents has resulted in arbitrariness
thereby vitiating action of the respondents in holding the petitioner to be
disqualified.
7. Mr.Rajyadhyaksha further submitted that though initially the
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9petitioner was found to be technically qualified, subsequently, with
ulterior motive, the petitioner has been held to be disqualified.
8. An attempt has been made on behalf of the petitioner to submit
that the petitioner who was already executing some works for the
respondent-Corporation, had differences with one Ashok Sharma, who is
an Officer in the Corporation and that the decision to hold the petitioner
disqualified is at the instance of the said Sharma. It is further submitted
that there was an integrity clause in the tender document and as per the
integrity clause, the respondent-Corporation cannot disclose the details
submitted to it, to other bidders. It is further submitted that one of the
competitors of the petitioner, viz., TDI Brooks has been supplied secrete
information by somebody from the Corporation. It is submitted that TDI
Brooks has written a letter dated 20.11.2009 to the respondent-
Corporation and only after such a letter was written, the matter was re-
evaluated to hold that the petitioner is disqualified.
9. The learned counsel relied on the judgement of the apex Court in
Reliance Energy Ltd. v. Maharashtra State Road Development Corpn.
Ltd. [(2007) 8 SCC 1] in support of the submission that the doctrine of
“level playing field” is an important doctrine and that equally placed
bidders are required to be allowed to bid so as to subserve the larger
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10public interest.
10. Mr.Dada, the learned senior counsel appearing on behalf of the
respondent no.1, on the contrary, submits that the documents which were
relied upon by the petitioner in support of the technical qualification show
that the experience of the petitioner’s collaborators has been found to be
not in conformity with the requirements of the respondents. He submits
that the documents were not of such a nature which would establish
beyond doubt that the petitioner’s collaborators had two years’ experience
as on the opening date of the tender and that they had executed at least
one contract of the nature mentioned in the tender document. It is
submitted that the respondents by applying the similar standards had
evaluated the documents submitted by each of the bidders and after
careful evaluation thereof by the Tender Evaluation Committee which
consisted of senior Officers of the respondent-Corporation, it was found
that the documents submitted did not satisfy the requirements of the
technical qualification. The learned counsel submits that this Court is not
expected to interfere with the conditions mentioned in the tender inviting
notice. In support of this submission, the learned counsel relied on the
judgement of the apex Court in Nagar Nigam v. Al Faheem Meat
Exports (P) Ltd. [(2006) 13 SCC 382]. The learned counsel further
submitted that unless the respondents come to a subjective satisfaction
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11that the works in question were satisfactorily completed, on the basis of
the documents submitted by the party, it is well within its rights to hold
that the party has not satisfied the condition regrading technical
qualification. Reliance is placed in this respect on the judgement of the
apex Court in Electrical Mfg. Co. Ltd. v. Power Grid Corpn. of India
Ltd. [(2009) 4 SCC 87].
11. Insofar as the allegation regarding Ashok Sharma is concerned,
the learned counsel submitted that neither Ashok Sharma has been made a
party-respondent nor are their any specific allegations attributed to him in
the petition. He, therefore, submitted that in the absence of such
pleadings, it will not be permissible for this Court to go into the
allegations in that respect. Reliance is placed on the judgement of the
apex Court in Chandra Prakash Singh v. Chairman, P.G. Bank (2008 (3)
Scale 289). Insofar as the allegation regarding the TDI Brooks and Fugro
is concerned, it is submitted that the information regrading the technical
collaborators of the petitioner was very much available on their web site
and, as such, the letter written by the said TDI Brooks was on the basis of
the information received on the web site of the petitioner’s collaborators.
It is, therefore, submitted that the allegation in this respect are without
substance. The learned counsel further submitted that this Court is
concerned with the decision making process and not the ultimate decision
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12and unless it is found that the decision making process is vitiated on any
of the grounds on which judicial review of an administrative action is
permissible, no inference would be warranted by this Court. Reliance is
placed, in this respect, on the judgement of the apex Court in the case of
Tata Cellular v. Union of India [(1994) 6 SCC 651].
12. At the outset, we may observe that insofar as the allegations
made by the petitioner regarding the impugned action being at the behest
of Ashok Sharma and the same being made to favour TDI Brooks is
concerned, it will not be permissible for this Court to go into the said
allegations. The apex Court in Chandra Prakash Singh’s case (supra) has
observed thus:-
“15. In State of Punjab v. V.K. Khanna’s case
(supra), this Court held that the concept of fairness
in administrative action has been the subject-matter
of considerable judicial debate but there is total
unanimity on the basic element of the concept to
the effect that the same is dependent upon the facts
and circumstances of each matter pending scrutiny
before the Court and no strait-jacket formula can be
evolved therefore. Further it is stated that as a
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13matter of fact, fairness is synonymous with
reasonableness and on the issue of ascertainment of
meaning of reasonableness, common English
parlance referred to as what is in contemplation of
an ordinary man of prudence similarly placed – it is
the appreciation of this common man’s perception
in its proper perspective which would prompt the
Court to determine the situation as to whether the
same is otherwise reasonable or not. Similarly, the
existence of mala fide intent or biased attitude
cannot be put on a strait-jacket formula but depends
upon facts and circumstances of each case. Further,
it is said that whereas fairness is synonymous with
reasonableness – bias stands included within the
attributes and broader purview of the word
“malice” which in common acceptation means and
implies “spite” or “ill will”. Mere general
statements will not be sufficient for the purposes of
indication of ill will. There must be cogent
evidence available on record to come to the
conclusion as to whether, in fact, there was a bias or
a mala fide move which resulted in the miscarriage
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14of justice. It is also held that the test of bias is as to
whether there is a mere apprehension of bias or
there is a real danger of bias and it is on this score
that the surrounding circumstances must and ought
to be collated and necessary conclusion drawn
therefrom. In the event, however, the conclusion is
otherwise that there exists a real danger of bias,
administrative action cannot be sustained. If on the
other hand allegations pertain to rather fanciful
apprehension in administrative action, question of
declaring them to be unsustainable on the basis
therefor, would not arise.
16. In Dhampur Sugar (Kashipur) Ltd. v. State
of Uttaranchal and Ors.’s case (supra), this Court
dealing with the question of mala fide exercise of
power, held as under:
“Allegations of mala fide are serious in
nature and they essentially raise a question of
fact. It is, therefore, necessary for the person
making such allegations to supply full
particulars in the petition. If sufficient
averments and requisite materials are not on
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15record, the Court would not make “fishing”
or roving inquiry. Mere assertion, vague
averment or bald statement is not enough to
hold the action to be mala fide. It must be
demonstrated by facts. Moreover, the burden
of proving mala fide is on the person leveling
such allegations and the burden is “very
heavy.” In the present case, except alleging
that the policy was altered by the
Government to extend the benefit to IGL, no
material whatsoever was placed on record by
the appellant. It is, therefore, not possible to
hold that the impugned action was mala fide
or malicious.”
13. In the present case, it can clearly be seen that though the
petitioner had number of opportunities, the petitioner has not impleaded
said Ashok Sharma as party-respondent. Even otherwise, apart from
making bald allegations, no particular allegation supported by any cogent
material has been placed on record by the petitioner in this respect. In the
absence of any such specific allegations supported by cogent evidence
being brought on record and such party being made party-respondent, it
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16will not be permissible for this Court to go into the said allegations. In
any case, from the material placed on record, we find that said Ashok
Sharma was not a member of the Tender Committee and the said
Committee consisted of the following three senior Officers:-
“1. Shri P.K. Dalal, GM(M), Head Marine Survey &
Offctdg. HOW.2. Shri A.K. Srinivasan, GM (F&A).
3. Shri A.K.Tewari, GM (MM)-Offctdg.Head MM.”
14. Insofar as the allegations regarding the the secret information
being supplied to M/s.TDI Brooks is concerned, we find that the
allegation in this respect is also without any substance. From the material
on record which is annexed along with the affidavits filed by the
respondents, it is clear that the information regarding the technical
collaborators of the petitioner is very much available on the web site of
the collaborators. The submission on behalf of the respondents, in this
respects, that the information regarding the collaborators of the petitioner
being received by the said TDI Brooks from the web site of the said
collaborators, therefore, appears to be of substance. In that view of the
matter, we are unable to accept the contention of the petitioner in this
respect.
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1715. While examining the merits of the petitioner’s case, we will
have to remind ourselves that while judicially reviewing an administrative
action, we are concerned with the decision making process of the
administrative authority and not the ultimate decision. In the case of Tata
Cellular (supra), the apex Court has observed thus:-
“77. The duty of the court is to confine itself to the
question of legality. Its concern should be:
1. Whether a decision-making authority exceeded
its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural
justice,
4. reached a decision which no reasonable
tribunal would have reached or,5. abused its powers.
Therefore, it is not for the court to determine
whether a particular policy or particular decisiontaken in the fulfilment of that policy is fair. It is
only concerned with the manner in which those
decisions have been taken. The extent of the duty
to act fairly will vary from case to case. Shortly
put, the grounds upon which an administrative
action is subject to control by judicial review can::: Downloaded on – 09/06/2013 15:37:53 :::
18be classified as under:
(i) Illegality : This means the decision-maker
must understand correctly the law that
regulates his decision-making power and
must give effect to it.(ii)Irrationality, namely, Wednesbury unreason-
ableness.
(iii) Procedural impropriety.”
After considering the various pronouncements of the apex Court on the
issue, the apex Court has deduced the principles in paragraph 94, which
are 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
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19be open to judicial scrutiny because the
invitation to tender is in the realm ofcontract. Normally speaking, the decision to
accept the tender or award the contract is
reached by process of negotiations through
several tiers. More often than not, suchdecisions are made qualitatively by experts.
(5) The Government must have freedom of
contract. In other words, a fair play in thejoints is a necessary concomitant for an
administrative body functioning in an
administrative sphere or quasi-administrativesphere. However, the decision must not only
be tested by the application of Wednesbury
principle of reasonableness (including itsother 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.”
16. We will have to, therefore, consider as to whether the action of
the respondents is valid or not within the limited para-meters that are
available, while reviewing the decision making process of the respondent-
authority.
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17. The limited scope, therefore, is as to whether the action of the
respondents is vitiated by illegality, irrationality or impropriety. In this
background, we will have to examine the reasons given by the respondent
no.1-Corporation while coming to the conclusion that the documents
supplied by the petitioner do not satisfy the requirement of the technical
qualification required for the work.
18.
Insofar as the corporate description of M/s.Williamson and
Associates is concerned, the authority has found that the said document
merely gives the company’s perspective of its work without any
supporting documentation. It has been found by the respondents that the
said document did not establish that the said M/s.Williamson and
Associates had successfully completed the type of work which was
required to qualify for the tender in question. Insofar as the document
pertaining to contract no.144695-TPE dated 8.10.2008 with Tyco
Telecommunications dated 8.10.2008 is concerned, the petitioner has
submitted a survey report and completion certificate dated 31.3.2009.
However, the authority has found that the said work does not meet the
requirement of the criterion of two years’ experience as required under the
bid document. Insofar as the reports submitted by the petitioner of
Williamson & Associates dated 18.5.2005, it was not taken into
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21
consideration on the ground that the said report was the document
prepared by Williamson & Associates themselves and there was no
corroboration from the clients of Williamson & Associates regarding the
said work being satisfactorily completed by Williamson & Associates.
The report of the U.S. Geological Survey which was relied upon by the
petitioner was not taken into consideration as the said report was last
modified on 4.4.1996 and, as such, it fell beyond the period of ten years
as required under clause 2.1(a)(i).
ig The respondent-authority has found
that the petitioner has failed to produce any document in the nature of
contract, work order and completion certificate from the clients of the
said Williamson & Associates in support of their claim that they had
experience as per the requirement of the tender document. As such, the
respondent-authority has found that the petitioner had failed to establish
that the petitioner was qualified insofar as Part I work i.e. Geophysical
Survey.
19. Insofar as Part II i.e. Geo Technical Investigation is concerned,
upon perusal of the documents submitted by the petitioner regarding the
experience of M/s.Carmacoring S.r.I. working with ISMAR, it was
found that the work done by M/s.Carmacoring was merely supplying two
technicians and instruments to ISMAR. It was further found that the
work related to ISMAR does not fall within the requirement of two years’
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22
experience requirement of BEC. Insofar as the Collaboration Agreement
is concerned, it was found that M/s.Carmacoring were mere suppliers of
equipment that was used in the project Makassar Strait in Indonesia.
Insofar as the letter produced by the petitioner thanking Car. Ma of
Angelo Magagnoli, it was found by the authority that the said letter does
not bear out the nature of work done by Car.Ma and the authority has
further found that if the said letter is read with the Collaboration
Agreement, the inference that could be drawn would be that it was in the
context of supplies of equipment made by Car.Ma. Insofar as the Internal
Report prepared by M/s.Carmacoring is concerned, it was found by the
authority that this document is only an Internal Report and does not
establish any experience of the category required by the BEC. Insofar as
the company profile of M/s.Carmacoring is concerned, the authority has
found that the said company is a mere supplier of instruments and
equipment for coring. The respondent-authority has relied on the
following part of the said document in support of their finding in this
respect:
“The technical department is supervised by Angelo
Magagnoll, a former employee of CNR (Italian
National Research Council) at the Marine Geology
Institute in Bologna where he invented and
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23patented some instruments which are currently on
the market.”
The respondent-authority has further relied on the following part of the
said document:-
“Carmacoring S.r.l. provided the equipment
(CP-20) and the technical personnel for IDMC
Impressub S.r.l. during the job performed for the
client Chevron-Unocal.”
Upon entire perusal of this document, the authority has found that the
work involved was supply of sampling instruments designed by Angelo
Magagnoll and commercialised by Carmacoring. Insofar as the
completion certificate relied on by the petitioner dated 5.10.2007 is
concerned, it was found that the said letter had no reference to any work
order or contract and, therefore, cannot be said to be proof of satisfactory
completion of any of the work of the nature required under the tender
document. The authority has further found that the petitioner had not
submitted any document in support of the petitioner’s claim that the said
completion certificate was for completion of the job required as per the
BEC and was carried out by M/s.Carmacoring. Insofar as Hermes Cruise
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24
Report for ISMAR is concerned, it was found that the said document
apart from not satisfying the two-year condition of the BEC does not
establish that the company carried out the work required by the BEC. The
authority has further found that no work order or contract in support of
the said document was placed on record. Insofar as the certificate dated
30.11.2009 issued to the petitioner by ISMAR is concerned, the authority
has found that the said document merely refers to mobilisation of
personnel, equipment, handling system, spares on R.V. Urania for the
cruise called “Sassi 08” to carry out jumbo piston coring for sample
collection. The authority has found that this document is not sufficient to
establish that sample collection work was done by M/s.Carmacoring.
Insofar as the Collaboration Agreement for Impressub s.r.l. and the
Completion Certificate and the Daily Reports are concerned, the authority
has found that the work was done by Car.Ma and not by M/s.Carmacoring
s.r.l. who is the technical collaborator of the petitioner. It was further
found that the said work was mere supply of instruments and equipment
with the attending technicians of Car.Ma. The authority while arriving at
its decision has relied on the following part in the said document itself:-
"A) Mr.Magnagnoli is the sole owner of the
company denominated CAR.MA of Angelo
Magagnoli, …………………………………. dealing with
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25
the carrying out of the commercial activity of
wholesale and rental of geotechnical and
geophysical instruments;”
It was, therefore, found by the respondent-Corporation that insofar as Part
II of the work is concerned, the petitioner has failed to produce any
document which would meet the requirement as provided under the tender
document and as such found it disqualified for Part II work also.
20. At the cost of repetition, we may state that while exercising
powers of judicial review of administration action, we are not expected to
sit in appeal over the decision of the authority. It is not permissible for us
to examine as to whether the material which has been taken into
consideration by the authority was sufficient enough to arrive at the
decision taken by it. It is only permissible for us to examine as to whether
the decision taken by the authority is fair, reasonable and rational.
Sufficiency or insufficiency of the material would be beyond the scope of
judicial review in such matters.
21. From the perusal of the reasons which have been set out in short
hereinabove, it cannot be said that the reasons given by the authority
while holding that the documents supplied by the petitioner do not meet
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26
the requirement under the tender document is either unreasonable or
irrational. It cannot be said that the reasons given by the authority are
such that no prudent or reasonable man would take in the facts of the case.
It is also nobody’s case that the yardstick applied by the respondent-
authority to the petitioner are something different than those applied to
other bidders. The authorities have found that none of the documents
produced by the petitioner would establish the satisfactory completion of
the work. The apex Court in the case of Electrical Mfg. Co. Ltd. v.
Power Grid Corpn. of India Ltd. [(2009) 4 SCC 87] has observed thus:-
“19. In our opinion the expression “satisfactory
completion” governs sub-clause (i) of Clause 1.1
also. Hence mere surveying, optimising tower
locations, erecting and stringing with tension
stringing equipment the requisite length of
transmission lines will not be enough to give the
necessary technical experience because it is
possible that even after doing the above work the
transmission lines may not function. Unless after
doing the above works the line is tested and found
to be successfully functioning it surely cannot be
said that there was satisfactory completion of the
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27transmission lines.”
22. In our considered view, therefore, refusal to accept the documents
which are relied on by the petitioner on the ground that they did not prove
that the petitioner or its collaborators had satisfactorily completed any
work of the nature stipulated in the tender notice can be faulted with. No
doubt, the apex Court in the case Reliance Energy Ltd. v. Maharashtra
State Road Development Corpn. Ltd. [(2007) 8 SCC 1] has held that it is
necessary for the authority to provide a level playing field. As observed
by the apex Court in the said judgement, the level playing field provides
space within which equally placed competitors are allowed to bid for
government contracts so as to subserve the larger public interest. It can
thus be seen that level playing field would be applicable only if bidders
are equally placed. By no stretch of imagination, the level playing field
could be provided to the parties who are qualified and also parties who
are not qualified. In the present case, we do not find that the decision
arrived at by the authority can be termed as an unreasonable decision and
that too so unreasonable that a reasonable person would not have arrived
at it. Applying the principle of Wednesbury reasonableness, we do not
find that the decision of the authority can be termed to be either
unreasonable or irrational so as to warrant interference in our
extraordinary jurisdiction under Article 226 of the Constitution.
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28
23. In the result, the petition fails and is dismissed.
24. After the judgement was pronounced, the learned counsel
appearing for the petitioner sought extension of the interim order dated
24.12.2009 for a period of two weeks from today to enable the petitioner
to move the Supreme Court. The said request is strongly opposed by the
learned counsel for the respondent no.1 on the ground that this will result
in delaying the project as the period will be curtailed for execution of the
work which is to be done during the current season and the bid would
expire. Taking into consideration that the petitioner has sought extension
of the interim order for two weeks, we are inclined to extend the interim
order till 4.3.2010 on condition that the petitioner shall give 48 hours’
notice to the respondents before moving for any interim orders in the
matter. Order accordingly.
(J.N. PATEL, J.)
(B. R. GAVAI, J.)
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