High Court
Case Details
WP(C) 154/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (CAV) Drillmec S.p.A., a Company registered in Italy and working in th e area of manufacture and supply of land rigs for the purpose of exploration and development of Oil and Gas, has filed the present petition praying for a writ i n the nature of mandamus directing the Oil India Limited (in short, (cid:28)OIL (cid:29)) to se ttle the tender process initiated vide tender notices Nos.SDG9008P11/07 and SDG7 289P13/07 in strict compliance of the mandatory provisions of law and other guid elines formulated and also restraining the respondent OIL from awarding the cont ract in favour of the respondent No.4, apart from a direction to award the contr act in favour of the petitioner by quashing the 430th meeting of the Corporate B usiness Committee (in short, (cid:28)CBC (cid:29)) held on 27th December, 2012 in relation to the aforesaid tender notices, contending inter alia that though the petitioner, the respondent No.4 and the respondent No.5 were found to be technically respons ive in the technical bids, there is a move to bestow undue benefit to the respon dent No.4 by flauting the mandatory guidelines of the Central Vigilance Commissi on, guidelines of the respondent OIL issued in respect of the said tender proces s and other mandatory provisions of law, despite emergence of the petitioner as the lowest bidder. According to the petitioner, the respondent OIL entered into negotiation with the respondent No.4, whose bid was higher than that of the pet itioner, ignoring the lowest bid offered by the petitioner by taking cognizance of unsolicited communications issued by the respondent No.4 challenging the fres h price bid of the petitioner, even without asking for any clarification from th e petitioner on the fresh price bid, if they have any doubt on the offer of the petitioner. It is also the case of the petitioner that they have never been inf ormed about the grounds, if any, for rejection of their offer and why negotiatio n has not been done with it, though was the lowest bidder and instead was negoti ating with the respondent No.4. Further case of the petitioner is that they, fo r the first time, came to know about the reasons for rejection of their bids whi le they have been served with a copy of the affidavit-in-opposition filed by the respondent OIL, disclosing the grounds on which the petitioner’s bid has been r ejected. [2] The writ petition has been opposed by the respondent OIL as well as the respondent No.4 by filing separate affidavits, basically contending that the writ petition is not maintainable because of suppression of material facts; the petitioner being a company registered in Italy and not a natural person, is not entitled to file writ petition for enforcement of the fundamental rights un der Articles 14 and 19 of the Constitution; the writ petition is not maintainabl e, the same being supported by an affidavit by a person, who has not been author ized to do so and the petitioner being guilty of the violation of the terms and conditions of the tender is not entitled to the relief claimed. [3] tion may be noticed as under:- The relevant undisputed facts leading to filing of the writ peti (i) A process, initially for supply and commissioning of two 2000 HP VFD rig package, one with top drive and another with provision for top drive, was initi ated by the respondent OIL in the month of August, 2010, by floating open global e-tender inviting bid under single stage 2(two) bid system, fixing 21st and 22n d September, 2010 as the dates for Pre-bid Conference. 27(twenty-seven) parties , who have purchased the tender documents, including the petitioner, the respond ent No.4 and the respondent No.5 participated in the Pre-bid Conference. 5(five ) parties, which includes the petitioner, respondent No.4 and the respondent No. 5, submitted their technical and commercial bids. On 15th June, 2011, the techn ical bids of all the bidders were opened. The petitioner, respondent No.4 and t he respondent No.5 were found to be technically responsive. The Head-Material o f the respondent OIL thereafter, on 20th January, 2012 submitted a proposal befo re the Tender Committee-cum-Approving Authority for putting up of a note to the CBC recommending opening of the price bids of 3(three) technically responsive bi dders, namely, the petitioner, respondent No.4 and the respondent No.5. In the said proposal, the approving authority was informed about the various deviations in the bids submitted by all the 3(three) bidders, which have been accepted by the user department while evaluating the offer, which includes the deviation by the petitioner relating to non furnishing the price of 63 major rig components, apart from non extension of the bid validity by the respondent No.5, M/s BHEL. The Tender Committee-cum-Approving Authority having approved the said proposal p laced the same before the Local Management Committee (in short, (cid:28)LMC (cid:29)), on whose recommendation note dated 16th February, 2012 was placed before the CBC of the respondent OIL seeking approval for opening of the commercial bids of the afores aid 3(three) bidders indicating the deviations including the deviation relating to the stipulation of the petitioner that it would not disclose the price of 63 major rig components. The CBC in its 425th meeting held on 2nd March, 2012, has approved the opening of the price bids of 2(two) bidders, namely, the petitione r and the respondent No.4, condoning the deviations as mentioned above. The CBC , however, in view of non extension of bid validity, decided not to open the pri ce bid of the respondent No.5. Accordingly, price bid of the petitioner and the respondent No.4 were opened on 7th March, 2012. (ii) Note dated 23rd May, 2012 was, thereafter, placed before the CBC, pursua nt to the decision of the LMC taken in its meetings dated 1st May, 2012; 8th May , 2012 and 15th May, 2012, pointing out certain discrepancies in the bids. The CBC in its 427th Meeting held on 11th June, 2012 decided to refer the matter to the Independent External Monitors (in short, (cid:28)IEMs (cid:29)) for their opinion, as envis aged in Clause-7 of the tender conditions, who have on 19th July, 2012 recommend ed invitation of fresh price bid. The CBC in its 427th Meeting held on 9th Augu st, 2012, accordingly, decided to re-invite the fresh price bid from all the 3(t hree) technically acceptable bidders, namely, the petitioner, respondent No.4 an d the respondent No.5, for 2(two) numbers of 2000 HP drilling rig packages with top drive, instead of one number each with and without top drive. Consequently the respondent OIL on 1st September, 2012 informed the aforesaid 3(three) techni cally responsive bidders to submit the fresh price bids fixing 26th September, 2 012 as the last date for such submission, which, however, was subsequently exten ded to 3rd October, 2012. All the aforesaid 3(three) bidders accordingly submit ted their fresh price bids. The petitioner in the fresh price bid has inserted the following clause, which was not put in the earlier price bid submitted by it :- (cid:28)Drillmec reserved the right to manufacture and test the rigs, or part of them, in any of its facilities, which belong to us as per their availability at the ti me of contract awarding. (cid:29) The petitioner in the fresh price bid has indicated the consolidated pri ce of 19 components instead of 63 major rig components. The respondent No.5 als o did not disclose the price of all the 63 major rig components.
Facts
The fresh price bid of the bidders were opened on 3rd October, 2012 and (iii) thereafter, it was sent to the user department, which has confirmed that the off ers are in order as per the tender requirement as far as type and the quantity o f spares are concerned with the further observation that the offer made by the p etitioner is the lowest. The LMC in its proceeding dated 9th October, 2012 scrut inized the offers made by all the 3(three) bidders and found that the petitioner has put the aforementioned clause in the price bid. The LMC having regard to t he attending facts and circumstances decided to have the clarification from the petitioner and to reconfirm that all the points agreed by them in their technica l bids and during technical clarification sought by OIL will be honoured by them . The LMC, however, before obtaining such clarification decided to place the ma tter before the CBC for approval/concurrence. The decision of the LMC was also approved by the Appropriate Authority-cum-Tender Committee on 12th October, 2012 . A note dated 13th October, 2012 was, accordingly, placed before the CBC, whic h was considered on 3rd December, 2012 in its 429th Meeting. In the meantime, 3 (three) unsolicited communications dated 12th October, 2012; 16th October, 2012 and 19th October, 2012 were received by the respondent OIL form the respondent N o.4 contending that the fresh price bid submitted by the petitioner is to be rej ected because of incorporation of the aforesaid clause in the price bid, in view of Clause-1 of the Bid Rejection Criteria (Commercial), as well as for not prov iding the cost of all 63 major rig components. (iv) The CBC in its 429th Meeting held on 3rd December, 2012 took up the aforesa id note dated 13th October, 2012 as well as the unsolicited communications recei ved from the respondent No.4, for consideration. A decision was taken in the sai d meeting to obtain the opinion from the learned Solicitor General of India. An opinion dated 14th December, 2012 was then obtained from the learned Attorney G eneral of India, based on which the CBC in its 430th Meeting held on 27th Decemb er, 2012 decided to accept the said opinion and to call the respondent No.4 for negotiation on price to match with the price quoted by the petitioner.
Legal Reasoning
s- Ganesh Engineering Works & Ors. reported in (1991) 3 SCC 273; in Tata Cellula r -Vs- Union of India reported in (1994) 6 SCC 651; in Monarch Infrastructure (P ) Ltd. -Vs- Commissioner, Ulhasnagar Municipal Corporation & Ors. reported in (2 000) 5 SCC 287; in Directorate of Education & Ors. -Vs- Educomp Datamitcs Ltd. & Ors. reported in (2004) 4 SCC 19; in Jagdish Mandal -Vs- State of Orissa & Ors. reported in (2007) 14 SCC 517; in Meerut Development Authority -Vs- Association of Management Studies & Anr. reported in (2009) 6 SCC 171 and in Indian Railway Catering and Tourism Corporation Ltd. & Anr. -Vs- Doshion Veolia Water Solution s Private Ltd. & Ors. reported in (2010) 13 SCC 364 as well as of this Court in Sterlite Technologies Ltd. & Anr. -Vs- Assam Power Distribution Co. Ltd. & Ors. reported in 2011 (5) GLT 600. [18] Mr. K.N. Choudhury, learned senior counsel appearing for the res pondent OIL, referring to the first and the third grounds of rejection of the pe titioner’s bid, has submitted that the bid of the petitioner has rightly been re jected, the same being not in conformity with the terms and conditions of the NI T. According to the learned counsel, the bid of the petitioner becomes non resp onsive technically, in view of the clause put in the commercial bid, reserving t he right to manufacture and test the rights or part of them in any facilities be long to the petitioner as per the availability at the time of contract awarding, in as much as Clause-15 of the bid rejection and bid evaluation criteria, in re spect of evaluation of the technical bids, provides for manufacturing of the rig or part of them in such unit, which has a valid license of API specification 4F for a period of not less than 10(ten) years continuously without any break prec eding the bid (technical) opening date. The learned senior counsel submits that by putting such condition, the petitioner reserves the right of manufacturing t he rigs or any part of it in any manufacturing unit, which may or may not have a valid API license with specification 4F for a period of not less then 10(ten) y ears. The learned counsel, therefore, submits that though such a condition has been put in the price bid of the petitioner, without putting the same in the tec hnical bid, it amounts to violation of the conditions in the technical bid even though the petitioner was earlier found to be technically responsive and hence t he bid of the petitioner was rightly rejected by the respondent OIL, which decis ion of the authority, therefore, cannot be termed as arbitrary. It has also been submitted that the submission of the petitioner that under the terms and condit ions of the NIT, since certain components of the rigs cannot be manufactured in a manufacturing unit not having the valid license of API with specification 4F, putting such clause in the price bid would not violate the terms and conditions of the bid, more so, when the bid documents stipulates that the equipments must have API monogram die stamped on the body and as such, whether the equipments ma nufactured in another unit other than the unit in respect of which the valid lic ense of API specification 4F has been submitted with the bid documents, could be ascertained by such API monogram, cannot be accepted in view of the fact that u nder the terms and conditions of the NIT, the bidder has to manufacture those co mponents in the unit in respect of which the license has been furnished with the bid. It has also been submitted that in any case from such API monogram die st amped on the body of the equipments, it is not possible to ascertain whether the manufacturing unit where such equipments are manufactured has the valid license of API with specification 4F for a period of not less than 10(ten) years. Acco rding to the learned senior counsel, there being a specific condition in that re spect in the NIT, the bidders have to comply with such conditions. [19] Mr. Choudhury further submits that the inspections either by the TPI Agencies or Pre-dispatched or during manufacturing or at the time of delive ry, as provided in the terms and conditions of the NIT, being relate to the insp ections after awarding of the contract in favour of a bidder, to ensures manufac ture of the required components or equipments in a validly licensed manufacturin g unit having API specification 4F, the petitioner cannot contend that in view o f such in built checks provided in the terms and conditions of the bid, the auth ority ought not to have rejected the bid of the petitioner on the ground of putt ing a condition. The learned senior counsel submits that the inspection as prov ided in the terms and conditions relates to the quality, control and not for ver ifying as to whether the manufacturing unit where the equipments or parts of the rigs have been manufactured have the valid API license with specification 4F fo r a continuous period of 10(ten) years before submission of the technical bids. That apart, the cost of such inspections is to be borne by the respondent OIL, which would be an additional financial burden and hence there is no reason as to why the respondent OIL would be exposed to such burden for the fault of the pet itioner. [20]
Arguments
I have heard Mr. PK Goswami, learned senior counsel for the peti [4] tioner, Mr. KN Choudhury and Mr. AK Ganguly, learned senior counsel appearing fo r the respondent Nos.1, 2, 6 and respondent No.4, respectively. The respondent N o.5 has not contested the writ petition. [5] Mr. Goswami, learned senior counsel appearing for the petitioner , submits that the petitioner for the first time, from the affidavit-in-oppositi on filed by the respondent OIL, came to know about the grounds on which the peti tioner’s bid has been rejected, namely, (i) insertion of a new condition in the form of a foot note, in the commercial bid of the petitioner, reserving the righ t to manufacture and test the rigs, or part of them, in any of the facilities, w hich belong to them, as per their availability at the time of their contract awa rding, (ii) quotation of the price of only 19 major components against the tende r requirement of 63 major components, prescribed in the Price Bid Format and (ii i) inability of the respondent OIL to determine whether or not the API certifica tes furnished by the petitioner alongwith the bid documents covers other facilit ies of the petitioner, where the petitioner reserve the right to manufacture or test the rigs or part of them. According to the petitioner, they have never bee n informed by the respondent OIL, at any time, prior to filing of the affidavit- in-opposition, about the grounds on which their bids have been rejected and as s uch, they did not have any knowledge about the same. The learned senior counsel submits that the petitioner has filed the petition apprehending disqualification , as they came to learn that the respondent OIL had decided to disqualify the pe titioner in the tender process, and for directing the respondent authorities to settle the tender process, initiated vide tender notices, in strict compliance o f the mandatory provisions of law and other guidelines formulated thereunder and also for restraining the respondent OIL from awarding the contract in favour of the respondent No.4. Referring to the first ground of rejection of the petitioner’s b [6] id, as disclosed by the respondent OIL in their affidavit-in-opposition, it has been submitted by Mr. Goswami, learned senior counsel, that the foot note in the price bid, reserving the right to manufacture or test the rigs or part of them in any facilities belonging to the petitioner, has been incorporated in the pric e bid to inform the respondent OIL that the petitioner is open to the idea of ma nufacturing the aforesaid rig components in any of its facilities available, as during the course of deliberation, the IEM, to whom earlier price bid was sent f or verification, enquired with the representative of the petitioner as to whethe r it is feasible on the part of the petitioner company to manufacture the compon ents in Italy or elsewhere. According to the learned counsel, by putting such C lause in the price bid, the petitioner does not intend to manufacture the afores aid components in any units other than the manufacturing unit in respect of whic h API license has been furnished and was mentioned only to make its position cle ar that if the respondent OIL wants that such components are to be manufactured other than in Italy, they are free to do so. The learned senior counsel further submits that such deliberation between the representative of the petitioner and the IEM has not been denied by the respondent OIL in its additional affidavit f iled on 1st April, 2013. The learned senior counsel submits that the said foot note does not in any manner indicate that the petitioner would manufacture the c omponents of the rigs in violation of the terms and conditions of the bid docume nts, which requires manufacture of certain components in API licensed manufactur ing unit with specification 4F. [7] Mr. Goswami further submits that the bid of the petitioner has b een rejected on the ground of violation of clause-1.0 of the Commercial Bid Reje ction Criteria, on the ground that the price bid of the petitioner contains the aforementioned Clause, reserving the right to manufacture the rig components in any of its factory, which cannot be done as in the said clause, there is no nega tive stipulation of rejection of the price bid in case of insertion of such clau se. The learned counsel referring to the various clauses of the bid document, m ore particularly, the stipulation under the head ’make of rig accessories’, has also submitted that the petitioner has no option but to manufacture 2(two) compo nents, namely, Crown Block Assembly and Mast and Sub-structure in API licensed f actory with specification 4F and to procure other equipments from any of the app roved vendors specified by the respondent OIL. In any case, according to the le arned senior counsel, there being provision for inspection and test of all the r ig components during manufacture, prior to dispatch as well as Third Party Inspe ction of the rig components and the rigs to be supplied, to ensure manufacture o f the rig components and the rig as per specification, in the manufacturing unit having API specification 4F, putting a condition in the price bid, in the form of foot note, cannot be the ground for rejection of the petitioner’s bid, as the petitioner cannot, under the terms and conditions of the bid, manufacture the r ig components in any non API licensed manufacturing unit. [8] The learned senior counsel has also submitted that since the port of origin has been mentioned as Italy, the petitioner would not, therefore, manufac ture those 2(two) components in its manufacturing unit at Houston in USA and car ry it to Italy for transhipment to Kolkata (India), incurring heavy cost. The le arned senior counsel submits that since the petitioner’s technical bid was accep ted and the petitioner having submitted the technical bids with a stipulation of manufacturing of those 2(two) components in a manufacturing unit in respect of which the API license has been submitted, no reasonable person would have taken the view that the petitioner would manufacture those 2(two) equipments in any fa ctory other than the API certified factory. The learned senior counsel further submits that there being a provision for clarification in Clause-2 of the additi onal notes appended to Section-20 of the bid documents, the respondent OIL, in c ase of any doubt whether the rig components would be manufactured in the manufac turing unit, in respect of which API license was submitted alongwith the bid, wo uld have sought for clarification from the petitioner, as recommended by the LMC , more so when the price difference is substantial, which would not have caused any further delay in finalization of the process, which has already taken more t han 2(two) years from the date of floating the tender, for no fault of the petit ioner. The learned senior counsel submits that the respondent OIL has taken the decision to reject the bid of the petitioner on that count, not based on its ind ependent decision but based on the opinion of the Law Officer of the Union of In dia, and unsolicited communications received from the respondent No.4, despite t he stipulation in Clause-14.1 of the terms and conditions of the bid. [9] Referring to Clause-15 of the technical bid rejection criteria, it has further been submitted that though a bidder is required to furnish, along with the bid documents, a valid license of API specification 4F for a period of not less than 10(ten) years continuously without any break, preceding the techni cal bid opening date, it has nowhere been mentioned in the tender documents or i n the guidelines issued by the respondent OIL, in the matter of awarding the con tract, that the components of the rigs must be manufactured in the manufacturing unit in respect of which the API license with specification 4F has been furnish ed alongwith the bid documents. The learned senior counsel, therefore, submits t hat reserving the right by the petitioner to manufacture the rig components in a ny of the manufacturing unit belonging to the petitioner, do not violate any of the conditions in the bid documents. The learned senior counsel also submits that the bid of the peti [10] tioner cannot be rejected on the ground of putting such condition, on the ground that such condition has no relation with the commercial bid but has relation to the technical bid, once the petitioner is found to be technically responsive. According to the learned senior counsel, the stage for scrutinizing as to whethe r the bidder is technically responsive, being over and the petitioner having bee n found technically responsive and consequently the price bid being opened, the respondent OIL cannot subsequently reject the bid of the petitioner on the groun d that such condition, put in the price bid in the form of a foot note, renders the petitioner’s bid technically non-responsive. [11] The learned senior counsel, in relation to the second ground of rejection of petitioner’s bid, has submitted that the petitioner from the very b eginning has informed the respondent OIL that it will not disclose the price of individual major rig components, by indicating it in the checklist appended to t he technical bids. The respondent OIL having taken note of the same, in its pro ceeding dated 16th February, 2012 and pursuant to the decision of the CBC, decid ed to open the first price bid of the petitioner alongwith the price bid of M/s Bhel (respondent No.5), who also refused to disclose the price of individual rig components, and hence, the respondent OIL cannot contend that since the petitio ner did not disclose the price of the individual rig components, its bid is in v iolation of the terms and conditions of the bid documents. The learned senior c ounsel further submits that the stipulation in the new price format supplied to the various bidders on 1st September, 2012, requiring providing breakup of price s alongwith the bid format, wherever specified in original tender document, has to be interpreted accordingly, inasmuch as, the requirement of disclosure of pri ce of all the rig components has been relaxed by the respondent OIL by its condu ct by accepting the petitioner’s stipulation of non disclosure. It is also subm itted that the respondent OIL has taken a conscious decision to accept the offer without disclosure of the price of all 63 major rig components and hence it can not reject the second price bid of the petitioner on that count. [12] The learned counsel submits that the non disclosure of the price of each major rig components being necessary for accounting purpose of the resp ondent OIL, and the petitioner having undertaken to disclose the same in case th e contract is awarded, the purpose for which such price of individual rig compon ents is necessary would be served and cannot be treated as essential condition, so as to reject the bid of the petitioner. The learned senior counsel further s ubmits that had disclosure of the price of 63 major rig components been the esse ntial condition of the bid, the respondent OIL would not have taken the decision to open its price bids, namely, the first as well as the fresh. The learned se nior counsel further submits that quotation of the price of 63 major components having no relation to the object of procuring rigs, such condition, in any case, cannot be termed as mandatory, hence, violation, if any, would not make a bidde r commercially non responsive. The learned senior counsel, referring to Clause-5.1 of the Bid E [13] valuation Criteria (Commercial), has submitted that the price of the individual 63 major rig components cannot be the basis for commercial evaluation of the bid submitted by the bidders, as in the said clause it has specifically been stipul ated that the comparison of the bid will be done on the basis of the grand total value and not on the basis of the price of individual 63 major rig components. The learned counsel, therefore, submits that non disclosure of the price of ind ividual 63 rig components, in any case, cannot be the basis for rejection of the price bid of the petitioner, whose offer is much lower than the offer of the re spondent No.4, which, according to the learned senior counsel, has been done by the respondent OIL at the instance of the respondent No.4 acting on the unsolici ted communications issued by them. [14] Referring to the ’commercial bid format summary’ furnished to th e bidders by the respondent OIL, before submission of the fresh price bid, it ha s been submitted that what the bidders were asked to furnish is the price of the components under 19 heads and accordingly the petitioner having submitted the p rice bids disclosing the price under those 19 heads, its price bid cannot be rej ected on the ground of non furnishing of the price of 63 major components, as st ipulated in Annexure-A4 to the bid documents, which, according to the learned se nior counsel, is not required to be complied with, in view of the subsequent com mercial bid format supplied to the bidders. The learned senior counsel, with regard to the third ground of r [15] ejection of the petitioner’s bid, has submitted that the same is not at all tena ble in facts and law, as the respondent OIL could have obtain the clarification from the petitioner on the foot note. That part, there being provision for insp ection, monitoring and checking, apart from the ultimate rejection of the rigs a s well as forfeiture of the guarantee money, it would absolutely be not difficul t on the part of the respondent OIL to ensure that the rig components are manufa ctured only in a manufacturing unit belong to the petitioner having API license with specification 4F, which components, in any case, have to be manufactured in such API licensed unit with specification 4F. The learned senior counsel furth er submits that Section-20 of the bid documents having provided that the rig com ponents must have the API monogram die stamped on the body, it would not be diff icult on the part of the respondent OIL to verify as to whether the rig componen ts have been manufactured in API licensed manufacturing unit with specification 4F. The learned senior counsel submits that the grounds on which the petitioner ’s bid has been rejected are irrational and unreasonable and no person having pr operly instructed in law would have rejected the petitioner’s bid on such unreas onable, arbitrary and irrational ground. [16] The learned senior counsel further submits that though the power , under the terms and conditions of the bid, to seek clarification by the respon dent OIL in any matter, is discretionary, it becomes the duty on the part of the respondent OIL to seek clarification from the petitioner on the foot note appen ded to the price bid, if it has any doubt in that respect, as, such power is cou pled with a duty to seek clarification, in the interest of the respondent OIL fo r procuring the best available rig system that too at a much lesser price. Lear ned counsel further submits that the respondent OIL while exercising the discret ion did not take into consideration all relevant facts and took into considerati on the opinion of the Law Officer of the Union of India only. It has also been submitted that the difference of price quoted by the petitioner and the responde nt No.4 being substantial and the rig system offered having found to be technica lly suitable, the rejection of the petitioner’s bid on irrational, arbitrary and unreasonable conditions is against the public interest, as the respondent OIL i n that case would acquire the rig system at a much higher price from the respond ent No.4. [17] The learned senior counsel in support of his contention has refe rred to the decisions of the Apex Court in Hirday Narain -Vs- Income Tax Officer , Bareilly reported in 1970 (2) SCC 355; in Khudiram Das -Vs- The State of West Bengal & Ors. reported in AIR 1975 SC 550; G.B. Mahajan & Ors. -Vs- Jalgaon Muni cipal Council & Ors. reported in (1991) 3 SCC 91; in Poddar Steel Corporation -V
Decision
The learned senior counsel, referring to the deliberation during the Pre-Bid Conference held with the intending bidders on 28th and 29th Septemb er, 2010, has submitted that the petitioner in fact during the discussion in the Pre-Bid Conference requested for reduction of the period of API license with sp ecification 4F from 10(ten) years to 5(five) years, which was rejected and as su ch, the petitioner knew that the equipments are to be manufactured only in the m anufacturing unit having API license with specification 4F continuously for a pe riod of 10(ten) years prior to submission of the technical bids. The petitioner despite participation in the Pre-Bid Conference and rejection of their offer fo r reduction of the period of API license with specification 4F did not even made any whisper in the writ petition relating to the same, thereby suppressing mate rial facts, which itself disentitled the petitioner from getting the relief unde r Article 226 of the Constitution of India. The learned senior counsel, relating to the submission of the pe [21] titioner that the respondent OIL could have, in respect of the said clause reser ving the right to manufacture the rigs or any components in any manufacturing un it belonging to the petitioner, seek clarification from the petitioner instead o f straightway rejecting the bid, has submitted that the same also cannot be acce pted as Clause-14 of Section 20 of the general terms and conditions of the tende r prohibits acceptance of any offer or modification to offers after the bid clos ing date and time. It has also been submitted that though the discretion under Clause-14.2 has been given to the respondent OIL to seek clarification from the bidder, the same has to be read alongwith Clause-8.0, which provides that the bi ds not complying with the OIL’s requirement may be rejected without seeking any clarification. The learned counsel further submits that it is within the discre tion of the respondent OIL to seek clarification and if such discretion has been validly exercised by the OIL in not asking for any clarification without any ma lafide intention, the writ Court may not interferer with the decision of the res pondent OIL not to exercise the discretion, more so, when it is obligatory on th e part of the bidders to comply with the terms and conditions of the bid documen ts, who were informed that bids not complying with the OIL’s requirement may be rejected without asking for any clarification. According to the learned senior counsel, the petitioner, therefore, cannot, as a matter of right, claim that the respondent OIL must seek clarification relating to the said clause appended to the price bid. [22] The learned senior counsel further submits that the discretion e xercised by the respondent OIL not to seek the clarification from the petitioner in the matter of the said clause cannot be termed as irrational or arbitrary, m ore so when there is no malafide alleged and such decision was taken by the resp ondent OIL having regard to the attending facts and circumstances. It has also been submitted that even assuming but not admitting that the respondent OIL in e xercising its discretion should have asked the petitioner to clarify on the afor esaid clause, the petitioner’s bid being defective in not furnishing the price o f all 63 major rig components, the petitioner in any case, is not entitled to an y relief. [23] Mr. Choudhury further submits that the averments of the petition er in the affidavit-in-reply filed against the affidavit-in-opposition of the re spondent No.4 that the intention of the petitioner is to manufacture the rig com ponents in Italy facility, in respect of which API license of specification 4F w as submitted alongwith the tender documents, cannot be reconciled or accepted, i n view of the specific condition put by the petitioner in the form of the said c lause, in the price bid, reserving the right to manufacture the rig components i n any of its facilities, which may be other than the facility at Italy. The lea rned senior counsel, therefore, submits that since the decision making process h as not been vitiated by any arbitrary, irrational or unreasonable action on the part of the respondent authority, the petitioner is not entitled to any relief i n exercise of the writ jurisdiction, more so, when it is a contractual matter. [24] Referring to the second ground, on which the petitioner’s bid wa s found to be non responsive, i.e. failure to mention the price of all 63 major rig components, in terms of Annexure-A4, it has been submitted that though the p etitioner in the checklist appended to the technical bid informed the respondent authority about the company’s policy of not disclosing the price of components and the petitioner was found to be technically responsive, it does not mean that the respondent OIL cannot reject the petitioner’s bid on the ground of violatio n of the conditions in the NIT, more particularly, of Clause-5 of the additional note appended to Section-20 of the bid documents, which provides that the bidde rs must indicate the price of all major rig components as specified under differ ent Sections for drilling rig packages in the format furnished in Annexure-A4. It has also been submitted that in the bid format (summary) supplied to the bidd ers alongwith the communication dated 1st September, 2012, for submission of the fresh price bid, the bidders were informed to provide breakup of price alongwit h the bid format furnished wherever specified in the original tender document an d as such, the bidders are required to give the breakup of the price in respect of all 63 major rig components as specified in Annexure-A4 to the bid documents and hence, it does not fit in the mouth of the petitioner that by supplying the bid format on 1st September, 2012, the respondent OIL has given up the requireme nt of giving breakup of prices in respect of all 63 major rig components. [25] The learned counsel further submits that though in the technical checklist, the petitioner has mentioned about the company’s policy of not discl osing the price of each of the major rig components and consequently in the firs t price bid submitted, the petitioner did not mention the price of any of the 63 major rig components, the petitioner, by conduct, has given up its policy of no t disclosing the price of rig components, as in the fresh price bid submitted th ey have disclosed the price of 19 rig components, instead of 63 major rig compon ents, which they are required to give in terms of Annexure-A4 to the bid documen ts. The learned senior counsel submits that the petitioner’s price bid being con trary to the terms and conditions of the bid documents, has rightly been rejecte d by the respondent OIL, as the petitioner having chosen to submit the bids, the y must comply with all the mandatory requirements of the bid documents, which in cludes disclosure of the price of all 63 major rig components. The learned senior counsel, referring to Clause-1.0 of Annexure- [26] B to the bid documents, which provides the bid rejection criteria and bid evalua tion criteria in respect of the commercial bids, submits that since the petition er has failed to disclose the price of all 63 major rig components, in terms of Annexure-A4, the respondent authority has no alternative but to reject the comme rcial bid of the petitioner, as the said clause provides that the price bid must contain the price schedule and the bidders commercial terms and conditions and for its non compliance, the bid will be rejected. The learned senior counsel su bmits that Clause-1.0 has been violated by the petitioner in two ways, namely, b y non conforming to Annexure-A4 of the bid documents and also by putting a condi tion, in the form of a clause reserving the right to manufacture the rig compone nts in any of its facilities, which is not a commercial condition but a technica l condition. The learned senior counsel further submits that during the Pre-Bi d Conference, all the bidders were informed about the requirement of submission of the price bid in terms of Annexure-A4 to the bid documents by rejecting the c ontentions of the bidders including the petitioner to waive such requirement. [27] Referring to Clause 7.2.1 of the OIL’s Booklet for e-Procurement ICB Tenders, which were also made available to the bidders and applicable in th e present process, informing the bidders, that they shall have to fill in comple tely all fields in the price schedule furnished in the bidding documents in resp ect of the items quoted, it has been submitted that despite that the petitioner has chosen to mention the prices of 19 components instead of 63 as required. Th e learned senior counsel submits that the respondent No.5, M/s BHEL, also though in the checklist of the technical bid informed the respondent OIL against its p olicy of non disclosure of the price of major rig components, it has, however, i n the fresh price bid mentioned the price of all the 63 major rig components, as required by Annexure-A4 to the bid documents. [28] It has also been submitted that the requirements of having the p rice of all the 63 major components is for compliance of the International Finan cial Reporting System (IFRS) and for correct booking of capital expenditure and as such, it cannot be said that such condition is not mandatory requirement. It has also been submitted that the requirement of mentioning the price of all the 63 major equipments is also felt necessary by the respondent OIL, so that the b idders whose bid is ultimately accepted, in case of requirement of replacement o f any major components, do not charge the high price, thereby avoiding unnecessa ry spending of public money. In any case, according to the learned counsel, sin ce the bidder is bound to comply with the terms and conditions of the NIT, which includes furnishing the price of all 63 major equipments, the bid submitted by the petitioner cannot be accepted, as he has admittedly quoted the price of 19 c omponents only. Referring to the decisions cited by the learned senior counsel f [29] or the petitioner, it has been submitted by the learned senior counsel that thos e are not applicable in the facts and circumstances of the present case. It has also been submitted that as held by the Apex Court in Poddar Steel Corporation (supra) since the petitioner has failed to conform to the mandatory requirement of the bid documents, the petitioner’s bid has rightly been rejected by the resp ondent OIL. Referring to the decision of the Apex Court in Gursharan Singh & Anr . -Vs- New Delhi Municipal Committee & Ors. reported in (1996) 2 SCC 459, it has been submitted that the guarantee of equality before law being a positive conce pt, it cannot be enforced by a citizen or Court in a negative manner, i.e. if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the Court that th e same irregularity or illegality be committed by the State or an authority with in the meaning of Article 12 of the Constitution, so far such petitioners are co ncerned, on the reasoning that they have been denied the benefits, which have be en extended to others although in an irregular or illegal manner, the petitioner cannot claim the relief in the present writ petition solely on the ground that the unsolicited communications from the respondent No.4 has been accepted by the respondent OIL, despite the stipulation in Clause-14 of the bid documents, when the petitioner itself is guilty of violation of the mandatory conditions of the bid documents. [30] Placing reliance on the decision of the Apex Court in Raunaq Int ernational Ltd. -Vs- I.V.R. Construction Ltd. & Ors. reported in (1999) 1 SCC 49 2, it has also been submitted that the price being not always the sole criteria for awarding the contract and the same being only one of the criterias, public i nterest does not require acceptance of the petitioner’s bid when its bid is defe ctive being violative of the mandatory conditions of the bid documents and as su ch, it cannot be said that since the petitioner’s bid is found to be the lowest, his bid, irrespective of the violation of the mandatory requirements of the bid documents, must be accepted. The learned senior counsel further submits that a s held by the Apex Court in Larsen & Toubro Ltd. & Anr. -Vs- Union of India & Or s. reported in (2011) 5 SCC 430, that after the price bid is opened, there canno t be any change of the offer of the bidders in any respect, the respondent OIL h as not committed any illegality in not asking for clarification in respect of th e aforesaid clause, reserving the right to manufacture the rig components in any of the petitioner’s unit other than the unit in respect of which the API licens e has been submitted, more so, when such a course of action is not permissible u nder the terms and conditions of the bid documents. The learned senior counsel referring to the decision in W.B. State Electricity Board -Vs- Patel Engineering Company Ltd. & Ors. reported in (2001) 2 SCC 451 submits that the best way to a dhere to the transparency being to follow the tender conditions, the action on t he part of the respondent OIL in rejecting the bid of the petitioner, cannot be termed as arbitrary, irrational or unreasonable, such action being to adhere the transparency in the decision making process. [31] The learned counsel placing reliance on the decisions of the Ape x Court in Rajasthan Housing Board & Anr. -Vs- G.S. Investments & Anr. reported in (2007) 1 SCC 477 and in Siemens Public Communication Networks Private Ltd. & Anr. -Vs- Union of India & Anr. reported in (2008) 16 SCC 215, further submits t hat the scope of judicial review of the decision making process, in exercise of the power under Article 226 of the Constitution of India, being very limited, wh ich is required to be exercised with great care and caution and only in furthera nce of public interest and not on the ground of making out of a legal issue by t he person seeking a writ and where two views are possible and no malafide or arb itrariness is alleged or shown, the High Court cannot interfere with the view ta ken by the authority in the commercial matter and if the decision of awarding th e contract is bonafide and in public interest, the Court will not exercise the p ower of judicial review and interfere with the decision making process of the au thority, even if it is accepted, for sake of argument, that there is a procedura l lacuna. The learned counsel referring to the facts and circumstances of the i nstant case, has submitted that since it is admitted by the petitioner that they have not mentioned the price of all the 63 major rig components, which is a man datory requirement, this Court may not interfere with the decision making proces s of the respondent OIL merely on the ground that the petitioner has offered the lowest price. The learned counsel, therefore, submits that the writ petition fi led by the petitioner deserves dismissal. [32] Mr. Ganguly, learned senior counsel appearing for the respondent No.4, raising the question of maintainability of the writ petition supported by an affidavit filed by Shri Vamaraju Sree Satyamurti, has submitted that since t he respondent No.4 has challenged the authority purportedly given by the petitio ner in favour of said Sree Murti for filing the writ petition, it was incumbent on the part of the petitioner to produce such authority before this Court, when Sree Murti has claimed that he has been authorized by the petitioner to file the writ petition and to swear the affidavit, which having not been done, the writ petition supported by an affidavit by an unauthorized person deserves to be dism issed. It has also been submitted that Drillmec India Private Limited, of which Sree Murti claims to be the Director, being not a bidder in the bidding process , the writ petition filed with the affidavit of the Director of Drillmec deserve s to be dismissed as not maintainable. [33] Referring to the corporate entity of the petitioner, it has also been submitted by the learned senior counsel that since the petitioner has clai med a right under Article 19(1)(g) as well as under Article 14 of the Constituti on of India, the petitioner is not entitled to any relief, such protection of sp ecific fundamental rights being only guaranteed to a natural person and not to c orporate entities, as held by the Apex Court in State Trading Corporation of Ind ia Ltd. -Vs- Commissioner of Tax Officer & Ors. reported in (1964) 4 SCR 99; in Barium Chemicals Ltd. -Vs- Company Law Board reported in 1966 Supp SCR 311; in D ivisional Forest Officer -Vs- Biswanath Tea Company Ltd. reported in (1981) 3 SC C 238. It has also been submitted that the petitioner being a foreign entity, r egistered in Italy, is not entitled to invoke the fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India and the writ petition being based on the claim of violation of the fundamental rights under Article 14 and 19(1)(g) of the Constitution of India, the same deserves to be dismissed. The learned senior counsel in support of his contention has placed reliance on t he decision of the Apex Court in Indo-China Steam Navigation Co. Ltd. -Vs- Jasji t Singh, Addl. Collector of Customs reported in (1964) 6 SCC 594 as well as in B ritish India Steam Navigation Co. Ltd. -Vs- Jasjit Singh, Addl. Collector of Cus toms reported in AIR 1964 SC 1451. [34] Mr. Ganguly further submits that the petitioner is not entitled to the discretionary relief under Article 226 of the Constitution of India, as i t has suppressed material facts relating to the condition put by it in the price bid, reserving the right to manufacture and test the rig, or any part of them i n any of its facility as per their availability at the time of awarding the cont ract, and also about non disclosure of the price of all 63 major rig components, as per the format Annexure-A4 to the bid documents. According to the learned c ounsel, had those facts been disclosed in the writ petition, the Court would not have passed an interim order, as has been passed in the instant case. The lear ned senior counsel submits that because of such suppression and consequent inter im order passed, the entire project has suffered, thereby exposing the responden t OIL to financial loss, which in turn is against the public interest. The lear ned counsel in support of his contention has placed reliance on the judgments pa ssed by the Apex Court in Prestige Lights Ltd. -Vs- State Bank of India reported in (2007) 8 SCC 449 as well as in Kishore Samrite -Vs- State of Uttar Pradesh & Ors. reported in (2013) 2 SCC 398. [35] On the merit of the writ petition, the learned senior counsel su bmits that since the respondent OIL has followed the transparent bidding process , the decision making process has not been vitiated warranting interference by t his Court in exercise of the writ jurisdiction under Article 226 of the Constitu tion of India. It has been submitted that despite clear stipulation in the bid documents, in different clauses, intimating the bidders that in case of failure to furnish all the information may entail rejection without seeking any clarific ation and also despite the direction issued to submit the bids in the format onl y, the petitioner has put a condition reserving the right to manufacture the rig components in any of its manufacturing unit, that too in such a manner, which h as the possibility of overlooking it, since there is no indication in the bid do cuments submitted by the petitioner relating to putting such condition in the pr ice bid. [36] The learned senior counsel further submits that in the terms and conditions of the bid documents as well as during the Pre-Bid Conference of the bidders, which was attended by the petitioner also, the respondent OIL has info rmed all concerned about the requirement of disclosing the price of each of the 63 major rig components as per Annexure-A4 to the bid documents and the terms an d conditions of the bid documents having stipulated that failure to furnish all the information, as required, would entail the rejection of the bids without any clarification, the petitioner cannot file writ petition claiming that its bid h as to be accepted despite failure to furnish the price of each of the major 63 r ig components as well as despite violation of the terms and conditions of the bi d. The learned senior counsel submits that the requirement to furnish the price of all the 63 major components is not a empty formality so as to render such re quirement as non essential as contended by the petitioner, as, such requirement was in conformity with the International Financial Reporting System (IFRS) as we ll as the accounting system, which is also a relevant factor in taking a decisio n by the respondent OIL relating to the bidder in whose favour the contract has to be awarded. The learned counsel submits that though normally the lowest bidde r is to be preferred in public interest, such principle applies when the bidder fulfills the condition of bid. The learned senior counsel submits that in the i nstant case, the petitioner having violated the conditions of the bid, cannot cl am that it should be awarded with the contract solely on the ground that it has quoted the lowest price. The learned senior counsel further submits that the pu blic interest requires adherence to the rules and conditions of the NIT and mere ly because the bid was lowest, the requirement of the compliance of the conditio ns of the bid cannot be ignored. [37] Mr. Ganguly also submits that in the instant case, it is being a n international bidding, which is highly competitive, and the nature of work bei ng highly technical and very high degree of care and meticulous adherence to the requirement of bid is inherent in such bidding and as the petitioner admittedly having violated the terms and conditions of the bid document, they are not enti tled to the relief as claimed in the writ petition. The learned senior counsel in support of his contention has placed reliance on the decisions of the Apex Co urt in W.B. State Electricity Board -Vs- Patel Engineering Co. Ltd. & Ors. repor ted in (2001) 2 SCC 451 and in Siemens Public Communication Networks Private Ltd . (supra). [38] The learned senior counsel further submits that it is apparent f rom the stipulation in the bid documents that the respondent OIL had decided to purchase the rigs manufactured by only those manufactures, who has valid license of API specification 4F and that too for not less than 10(ten) years continuous ly without any break preceding the technical bid opening date. In the instant c ase, as the petitioner, by putting a condition in the price bid, has reserved th e right to manufacture the rig components in any of the manufacturing unit, othe r than the manufacturing unit in respect of which such API license with specific ation 4F has been submitted alongwith the bid documents, which condition relates to the technical bid, has violated the technical qualification, which a bidder must have. Such condition, submitted by the learned counsel, also violates the terms and conditions of the bid. The petitioner in fact has stipulated an additi onal condition in the price bid and if such condition was put in the technical b id its bid would have been non responsive technically and rejected and as such, the respondent OIL has not taken any arbitrary, irrational or unreasonable decis ion to reject the bid of the petitioner. [39] The learned senior counsel, referring to the submissions advance d by the learned senior counsel for the petitioner claiming that the respondent OIL ought to have sought clarification from the petitioner on the aforesaid cond itions put in the price bid as well as non disclosure of the prices of 63 major rig components, submits that by Clause-4.2 as well as Clause-8 of the bid docume nts all the bidders have been informed that if they do not conform to the OIL’s terms and conditions and the bid evaluation criteria, the bid of such bidders ma y be rejected without seeking any clarification. The learned senior counsel sub mits that though in Clause-14.2 of the bid documents, the respondent OIL reserve s the right to get the clarification from the bidders, the petitioner having vio lated the terms and conditions of the bid cannot claim a right that despite viol ation of the terms and conditions, the OIL is duty bound to seek clarification o n such violation. It has also been submitted that, in any case, the respondent OIL cannot seek clarification on such violation of the terms and conditions, as it would amount to treating other bidders unfairly, who have submitted their bid s in full compliance of the terms and conditions of the bid documents and it wou ld also be in violation of the requirement of adoption of fair and transparent p rocedure in the bidding process. The learned senior counsel further submits that the petitioner b [40] eing at fault and having not complied with the terms and conditions of the bid d ocuments, cannot claim a right. It has also been submitted that as the responde nt OIL has not rejected the technical bid of the petitioner at the threshold, ev en though they have disclosed in the checklist that it is against their policy t o disclose the price of the rig components, the petitioner cannot claim a right flowing from a mistake committed by the respondent OIL in not rejecting the tech nical bid of the petitioner at the threshold, as the mistake does not confer any right on the parties, more so when such mistake can be corrected at any subsequ ent stage. The learned senior counsel in support of his contention has placed r eliance on the judgment of the Apex Court in Union of India -Vs- S.R. Dhingra & Ors. reported in (2008) 2 SCC 229. The learned counsel referring to the decisio n of the Apex Court in Poddar Steel Corporation (supra) and in B.S.N. Joshi & So ns Ltd. -Vs- Nair Coal Services Ltd. & Ors. reported in (2006) 11 SCC 548 furthe r submits that essential conditions of the bid documents must be adhered to and the authority issuing the tender is required to enforce such conditions rigidly and in case of non adherence, the contract cannot be awarded to a bidder, whose bid is otherwise lowest. [41] Countering the pleadings of the petitioner that the rigs supplie d by the respondent No.4 are not working well, it has been submitted by the lear ned senior counsel for the respondent No.4 that the respondent/ OIL never at any point of time informed the petitioner that the rig supplied by them are not wor king well and, on the other hand, the respondent OIL has taken a stand that the rigs supplied are working well. The learned senior counsel submits that such an aspersion on the respondent No.4 is not at all warranted, the same having no ba sis on the facts. [42] The learned senior counsel also submits that the scope of judici al review of the commercial decision being very limited, which is available only when the process adopted or decision made by the authority is malafide or inten ded to favour someone or when the process adopted or decision made is so arbitra ry and irrational that no responsible authority acting reasonably should have re ach such decision and such decision affects the public interest, the petitioner is not entitled to the relief claimed in the writ petition as the petitioner has claimed that the contract is to be awarded even if they have violated the terms and conditions of the bid documents. It has also been submitted that merely be cause a legal point is made out, the writ Court will not exercise the writ juris diction in commercial contract, which jurisdiction is to be exercised with great caution and only in furtherance of public interest. It has also been submitted that unless the decision making process is contrary to law or actuated by malic e or suffers from consideration of irrelevant materials, the writ Court would no t exercise its jurisdiction under Article 226 of the Constitution, that too at t he instance of a bidder, who admittedly has not submitted the bid complying with the terms and conditions of the bid document. The learned senior counsel, ther efore, submits that the writ petition deserves to be dismissed with compensatory costs. The learned counsel in support of his contention has placed reliance on the decision of the Apex Court in Tata Cellular (supra); in Air India Ltd. -Vs- Cochin International Airport Ltd. & Ors. reported in (2000) 2 SCC 617; in Cent re for Public Interest Litigation & Anr. -Vs- Union of India & Ors. reported in (2000) 8 SCC 606; in Jagdish Mandal (supra) as well as in Arun Kumar Agarwal -Vs - Union of India & Ors. [Writ Petition (C) No.69/2012] decided on 9th May, 2013. [43] Mr. Goswami, learned senior counsel for the petitioner in reply to the submissions advanced by the learned counsel appearing for the respondents and referring to the first and the third grounds, on which the petitioner’s bid has been rejected by the respondent OIL, reiterating his earlier submission, ha s submitted that even the LMC in the proceedings dated 13th October, 2012 as wel l as on 1st November, 2012 recommended to have the clarification as provided in the terms and conditions of the bid. It has further been submitted that the pet itioner’s bid has been rejected, as is apparent from the aforesaid proceedings o f the LMC, based on the unsolicited communications issued by the respondent No.4 . The respondent OIL, though, never at any point of time was inclined to reject the bid of the petitioner on those ground, as the petitioner has made known the respondent OIL that it will abide by its undertaking earlier given for strict co mpliance of all the tender conditions including the manufacture of the aforesaid rig components in its Italy unit, it has taken the decision to do no at the ins tance of the respondent No.4 submits the learned counsel. The learned senior counsel submits that the CBC has taken a cons [44] cious decision to open of the price bid of the petitioner as well as of M/s Bhel , the respondent No.5, despite non disclosure of the price of individual 63 majo r rig components, and not to reject the offer of the petitioner on the aforesaid grounds, based on the recommendation of the LMC meeting held on 1st November, 2 012 opining that the Drillmec specifically confirmed during clarification of the technical bid that the mast and sub-structure and the other drilling equipments requiring API monogram would be built in Italy and the breakup of cost of major rig components being required for accounting purpose to comply with IFRS. The learned senior counsel further submits that in the said meeting of the LMC, it has also been pointed out that requirement of the disclosure of the breakup of c ost of major rig components is a non essential condition, which view the CBC in its 430th meeting, however, did not at all consider and took the decision to rej ect the offer of the petitioner only on the opinion of the Law Officer of the Un ion of India, without considering all relevant materials including the minutes o f the LMCs and without arriving at its independent decision. [45] It has also been submitted that since the LMC in its proceedings dated 13th October, 2012 as well as 1st November, 2012 recommended to obtain th e clarification of the doubt, which according to the LMC, has created because of the condition put by the petitioner in the price bid, reserving the right to ma nufacture the equipments in any of its unit, the respondent OIL ought to have ex ercise the discretion of have clarification, as stipulated in the terms and cond itions of the bid, in case it had any doubt that the petitioner would manufactur e those equipments in a non API certified manufacturing unit, keeping in mind th e difference of the price quoted by the petitioner and the respondent No.4 as we ll as the time, the respondent OIL has already consumed since the date of issuan ce of the global tender, more so when in the earlier stage of the process, clari fications were sought for and furnished by different bidders on some other issue s. According to the learned senior counsel no further clarification in fact was required as the LMC in its proceeding dated 1st November, 2012 recorded that the petitioner confirmed during clarification of technical bid that the mast and su b-structure and other drilling equipments requiring API manufacture would be bui lt in Italy in respect of which API license with specification 4F was submitted alongwith the tender documents. The learned senior counsel submits that the ent ire action on the part of the respondent OIL was directed to show undue favour a nd to award the contract in favour of the respondent No.4 by ignoring the legiti mate bid of the petitioner. [46] Referring to the submissions advanced by the learned senior coun sel for the respondent No.4, questing the maintainability of the writ petition, it has been submitted by the learned senior counsel that since the petitioner ha s challenged the decision making process of awarding the contract in favour of t he respondent No.4, it cannot be said that the petitioner is not entitled to the relief it being a foreign company. The learned senior counsel also submits tha t the respondent No.4, for the first time, alongwith the wr