High Court
Case Details
WA 132/2013 BEFORE THE HON’BLE MR. T. VAIPHEI THE HON’BLE MRS. (DR.) JUSTICE I. SHAH JUDGMENT & ORDER(CAV) (By I. Shah, J) Single Entity/Consortium of Organizations/Institutions registered/incorp
Decision
This is an appeal against the judgment and order dated 10.05.2013 pas sed by learned single Judge in WP (C) No. 274/2013, being the writ petition file d by the appellant. 2] The facts in brief are as follows: The respondent No. 2 Mission Director, National Rural Health Mission, De partment of Health and Family welfare, Govt. of Assam floated a request for prop osal for Inter Facility Ambulance Services for the entire population of the Stat e to provide transit health care and transportation to avail further health care facilities in attending to pregnant women, neonates, parents of neonates, infan ts and all other health emergencies etc. The eligibility criteria of the RFP wer e stipulated as under:- (a) orated in accordance with the applicable law. (b) Having 3 years experience in management and operation of such services w ith a minimum fleet of 100 vehicles supported by control room and call centre se t up by the bidder. Certificates from the organizations to which services provid ed are to be submitted. (c) Having experience in computer telephony integration with ability to log calls with Geographical information System with GPRS integrated Ambulance monito ring system and own software components. (d) 00 Cr. (e) An affidavit to the effect that bidder has not been blacklisted in the p ast by any of the State. Governments across the country and that they will not f orm any coalition with other bidder(s) (f) tion of the project. Average annual turnover of the last 3 financial years, not less than 20. Should have ability to train the personnel to be employed for implementa Note: In case of consortium, there should be a formal agreement between the partners accepting severe and joint responsibility for implementing of the p roject, reference of the lead partner and percentage of holding of each partner in the consortium. The maximum permissible partners in the consortium are 4 (fou r). For the purpose of minimum eligibility criteria, experience and turn over et c. of the partners having more than 20% holdings in the consortium will be added . 3] Bids were submitted and the representatives of 3 bidders i.e. Appellant, Respondent Nos. 5 & 6 participated in the opening of bid process. Thereafter, t he appellant made repeated efforts to ascertain the status of the tender as well as the time frame regarding evaluation of Technical Proposal and opening of th e Financial Proposal but he get no response. Apprehending that respondent No. 2 may proceed with the opening of the Financial proposal without considering the F inancial Proposal of the appellant, he filed the writ petition seeking directio n to respondent No. 2 to ensure participation of the petitioner in the opening o f Financial bid and to restrain the respondent No. 2 from awarding the tender ei ther to respondent Nos. 5 or 6 till disposal of the writ petition. The respondent No. 2 in his counter affidavit stated that the Appellant’ 4] s bid was rejected because the Appellant did not have two years experience of pr oviding inter facility ambulance service. The appellant then sought for amendmen t of writ petition with fresh prayers viz annulment/cancellation of tender proce ss and cancellation of the LOI issued to respondent No. 6, which was allowed. Th e appellant also filed affidavit in reply wherein he demonstrated that he had th e requisite experience as required under the RFP. In the amended writ petition a lso he stated that he fulfills the eligibility criteria. 5] In the additional affidavit filed by the respondent No. 2, it was assure d that the appellant had experience in operation of mobile medical units and he had only 10 months experience in operating the ambulance services. According to respondents, the Mobile Medical Units (MMU, in short) provides primary health ca re facility in inaccessible areas and is different from 102 ambulance service. The appellant in affidavit-in-reply to the aforesaid additional affidavit produc ed materials to show that an MMU is also an Ambulance Service that all functions of an ambulance can be performed by an MMU and that MMU is capable of handing m ore serious and specialized scenarios. The appellant also brought out the fact t hat the respondent No. 6 also did not have the requisite experience in carrying out inter facility ambulance service. The respondent No. 2 with the help of anot her additional affidavit brought on record material to show that MMU service is not an inter facility ambulance service. 6] Mr.P.C.Sarma, learned counsel for the appellant submitted that clause 3. 1 (e) of RFP stipulates that Technical Proposal of all the applicants will be ev aluated based on appropriate marking system. The RFP does not provide for short listing of bidders on the basis of the eligibility criteria. Further minimum 3 ( three) bidders have to be considered at the Financial Proposal stage. There was no evaluation of the Technical Proposal. The experience of the appellant in prov iding MMU service ought to have been considered while assessing experience in am bulance service. In clause 1.2 of the RFP, experience in management and operatio n of (cid:28)such (cid:29) services was stipulated. The term (cid:28)Such Services (cid:29) has to be read as service ’similar’ to IFT service. If the appellant had no experience of IFT Serv ice for 2 (two) years, the respondent No. 6 had also no requisite criteria. 7] It would be appropriate to first deal with the scope of power of Judicia l review in the matter of tenders and the various conclusions arrived at by the apex Court. In the case of Tata Cellular -vs- Union of India (1991) 1 AC was not ed as follows: (cid:28)77 (cid:29) The duty of the Court is to confine itself to the question of legality, its concern should be: The modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manne Whether a decision-making authority exceeded its powers? Committed an error of law, Committed a breach of the rules of natural justice, Reached a decision which no reasonable tribunal would have reached, or Abused its powers. (1) (2) (3) (4) (5) (cid:28)94 (cid:29) The principles deducible from the above are : (1) (2) r in which the decision was made. (3) The court does not have the expertise to correct the administrative deci sion. If a review of the administrative decision is permitted, it will be substi tuting its own decision, without the necessary expertise which itself may be fal lible. (4) The terms of the invitation to tender cannot be open to judicial scruti ny because the invitation to tender is in the realm of contract. Normally, speak ing, the decision to accept the tender or award the contract is reached by the process of negotiations through several tiers. More often than not, such decisio ns are made qualitatively by the experts. The Government must have freedom of contract. In other words, a fair pla (5) y in the joints is a necessary concomitant for an administrative body functionin g in an administrative sphere or quasi-administrative sphere. However, the decis ion must not only be tested by the application of Wednesbury principle of reason ableness (including its other facts pointed out above) but must be free from arb itrariness not affected by bias or actuated by mala fides. (6) tration and lead to increase and unbudgeted expenditure. 8] nd Another-vs- Union of India and Others (2008) 16 SCC 215, it was held that:- (cid:28)40 (cid:29) On examining the facts and circumstances of the present case, we are of th In the case of Siemens Public Communication Networks Private Limited a Quashing decisions may impose heavy administrative burden on the adminis e view that none of the criteria has been satisfied justifying Court’s interfere nce in the grant of contract in favour of the appellants. When the power of judi cial review is invoked in the matters relating to tenders or award of contracts, certain special features have to be considered. A contract is a commercial tran saction and evaluating tenders and awarding contracts are essentially commercial functions. In such cases principles of equity and natural justice stay at a dis tance. If the distance relating to award of contracts is bona fide and is in pub lic interest, courts will not exercise the power of judicial review and interfer e even if it is accepted for the sake of argument that there is a procedural lac una (cid:29). 9] In the case of Jagdish Mandal -vs- State of Orissa and Others (2007) 14 SCC 517 in para-22, it was observed:- (cid:28)22 (cid:29)Judicial review of administrative action is intended to prevent arbitrarines s, irrationality, unreasonableness, bias and mal fides. Its purpose is to check whether choice or decision is made (cid:28)lawfully (cid:29) and not to check whether choice or decision is (cid:28)sound (cid:29). When the power of judicial review is invoked in matters re lating to tenders or award of contracts, certain special features should be born e in mind. A contract is a commercial transaction. Evaluating tenders and awardi ng contracts are essentially commercial functions. Principles of equity and natu ral justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not , in exercise of power of judicial review, interfere even if a procedural aberration or error in assessmen t or prejudice to a tenderer, is protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a g rievance can always seek damages in a civil court. Attempts by unsuccessful tend erers with imaginary grievances, wounded pride and business rivalry, to make mou ntains out of molehills of some technical/procedural violation or some prejudice to self, should be resisted. Such interferences, wither interim or final, may h old up public works for years, or delay relief and succor to thousands and milli ons and may increase the project cost manifold. Therefore, a court before interf ering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) de or intended to favour someone; Or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: (cid:28) the decision is such that no responsible authority acting Whether the process adopted or decision made by the authority is mala fi Whether public interest is affected. In the case of Meerut Development Authority -vs- Association of Manageme reasonably and in accordance with relevant law could have reached (cid:29). (ii) 10] nt Studies and another (2009) 6 SCC 171, it was held as under:- (cid:28)40 (cid:29) There is no difficulty to hold that the authorities owe a duty t o act fairly but it is equally well settled in judicial review, the court is not concerned with the merits or correctness of the decision, but with the manner i n which the decision is taken or the order is made. The court cannot substitute its own opinion for the opinion of the authority deciding the matter (cid:29). (cid:28)41 (cid:29) The distinction between the appellate power and a judicial review is well k nown but needs reiteration. By way of judicial review, the court cannot examine the details of the terms of the contract which have been entered into by the pub lic bodies or the State. The courts have inherent limitations on the scope of an y such enquiry. If the contract has been entered into without ignoring the proce dure which can be said to be basic in nature and after an objective consideratio n of different options available taking into account the interest of the State a nd the public, then the court cannot act as an appellate court by substituting i ts opinion in respect of selection made for entering into such contract. But at the same time the courts can certainly examine whether the (cid:28)decision-making proc ess (cid:29) was reasonable, rational, not arbitrary and violative of Article 14 (cid:29). In this case, it appears from the materials on record that the represent 11] ative of the petitioner/appellant was present at the time of opening of the bid on 28.12.2012. On the same date evaluation for Techno-Commercial evaluation of b ids was carried on. In the meeting of the bid, evaluation committee found that t he petitioner was technically not acceptable as the bidder did not have the elig ibility criteria of 2(two) years experience in management and operation of Ambul ance Services with a minimum of 100 nos. of Ambulance supported by control room and call centre set-up. 12] Clause 3.1 (b) of RFP read with Clause 3.1 (e) of the RFP demonstrates t hat the petitioner’s Technical Proposal ought to have been evaluated and the Fin ancial Proposal of the Petitioner was required to have been opened after due con sideration of its Technical Proposal in accordance with the provisions of the RF P. 13] Thus, RFP only provides for analysis and not short listing of bids on th e basis of eligibility criteria. However, Sub clause-2, clause-2 of RFP says tha t the experience and capability of conducting of similar assignment will also be evaluated. 14] According to the appellant, experience is an eligibility criteria in the technical evaluation process and at the time of proposal of evaluation all the bidders, experience will be considered as basic criteria and it is for this reas on that 40 marks was assigned to experience. In case the Petitioner was found l acking in the experience, the petitioner could be marked low on the ’Experience’ criteria. It is the contention of the petitioner that the rejection of the bid was the stage of experience which was not provided in the RFP, is illegal and ar bitrary. 15] The respondents in their affidavit-in-opposition contended that the peti tioner furnished bid along with letter of intent dated 09.12.2011 issued by Stat e Programme Officer, State Health Society, Bihar for operationalising and managi ng 504 basic life support Ambulance in the PHEs, SDHS and FRUs in Bihar. The pet itioner also furnished an agreement entered into 04.01.2013 with a contract peri od of 2 years with provisions of further extension for another 3 years, subject to satisfactory performance. From the aforesaid documents furnished by the appel lant along with his bids, it is evident that the petitioner has experience of 10 months of Ambulance Services on the day of issuance of RFP. The appellant also furnished letter of intent of operation of mobile medical units in various state s of country since 2006. Since Mobile Medical Units (MMU, in short) only provide s diagnostic facility and not life supporting Ambulance, the aforesaid experienc e of petitioner in the operation of Mobile Medical Units is immaterial /irreleva nt in the present bid process. As such, the petitioner does fulfill the basic el igibility criteria as mentioned in clause 1.3 of RFP after the amendment experie nce from 3 years to 2 years. 16] According to the respondents, after the techno commercial evaluation on 21.12.12, the bids of the two technically viable bidders viz Zinta Health Care L imited and GVK, Emergency Management and Research institute were opened on 16.01 .13 in the presence of the bidders. On evaluation of the financial bids as per t he prescribe norms of the RFP, M/s Zinta Health Care Limited scored 70.81 and M/ s GVK Emergency Management and Research Institute scored 96.2. Thus, out of the aforesaid two bidders M/s GVK, Emergency Management and Research institute score d the highest and accordingly the committee recommended for awarding the bid in favor of GVK, Emergency Management and Research Institute. 17] According to the petitioner, irrespective of its purported in-eligibilit y, Technical Proposal of all applicants was to be evaluated as per Clause 3.1 (e ) of RFP followed by the stage of financial proposal. There is no indication in the RFP, providing for short listing of bidders on the basis of eligibility crit eria. The petitioner also took the plea that its experience in running Mobile Me dical Units (MMU, in short) ought to have been considered experience of running the Ambulance Services as required in the RFP. The terms MMU or Ambulance Servic e has not been defined in RFP and therefore the legal meaning has to be look in order to understand the nature and scope of MMU viz the Ambulance Service. 18] The learned Single Judge has observed that in the amended writ petition also it was not the case of petitioner that it had confirmed the requirements of eligibility criteria/experience. The petitioner only projected the story that a MMU service or Ambulance Service ought to have been taken into consideration wh ile evaluating. The learned single Judge also observed that a particular eligibi lity criteria/experience laid down in the RFP was not challenged in the writ pet ition and since the petitioner was lacking in-eligibility and did not conformed the requirements of eligibility clause, it cannot be said that committee has don e anything wrong in the bid of the petitioner. The learned Single Judge scrutini zed the difference between the MMU and Ambulance Services and rightly held that the Court exercising his power of Judicial under Article 226 of the constitution of India cannot sit on appeal over the findings of the expert committee. In abs ence of any material placed to show any arbitrary/illegal exercise action by the said expert committee and violation of any terms and condition of RFP, the Cour t cannot substitute its own opinion in the matter. It is settled law that the Court would not normally interfere that a dec 19] ision in the matters challenging the award of contract by State. If the decision relating to award of contract is bona fide and is in public interest, the court will not interfere even if procedural aberration or error in assessment or prej udge to tenderer is caused. (Jagdish Mandal, Supra). The appellant herein has failed to establish that award of contract to 20] the private respondent is contrary to public interest or it was un-reasonable. The learned Single Judge considered all these aspect in details and refused to i nterfere/exercise jurisdiction under Article 226 of the constitution. We fully a gree with the reasoning of the learned Single Judge and do not find any valid gr ound for interference. 21] s to cost. Consequently, this writ appeal and the same is dismissed with no order a JUDGE JUDGE Talom