High Court
Case Details
WP(C) 4281/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) The matter pertains to awarding of contract for handling and processing of Oily Sludge of Assam Assets. The petitioner, who was a tenderer for the said work is aggrieved by rejection of his technical bid. His prayer in the writ petition is for a direction to the respondents to open his commercial bid and thereafter to proceed with the matter in terms of the particular tender notice. 2. By Annexure-a Invitation to Bid (ITB) dated 24/02/2012, the ONGC authori ty invited bids under two bids system i.e. technical and commercial, for handlin g and processing of Oily Sludge of Assam Assets. As notified in the ITB, the da te and time of submission of bids and date and time of opening techno-commercial bids were 29/03/2012 (1400 hrs) and 29/03/2012 (1500 hrs) respectively. 3. Pursuant to the said ITB, the petitioner along with another including th e respondent No.5 submitted tenders. According to him, he had conformed to the r equirements of the bid. 4. As stated in the writ petition, the bid offered by the 3rd party was fou nd defective and accordingly the same was rejected. According to the petitioner, the bids submitted by the petitioner and the respondent No.5 were found technic ally acceptable as they fulfilled the norms prescribed in the ITB dated 24/02/20 12. The bid validity period was for 120 days from the date of opening of technic al bid but the respondent ONGCL vide e-mail dated 28/08/2012 asked the petitione r to extend the validity of the bid. Similarly, the respondent NO.5 was also ask ed to extend its bid validity period. 5. In response to the said e-mail, the petitioner submitted his consent for extension of the validity period. According to the petitioner, the respondent N o.5 made a conditional offer for extension of the validity of the bid subject to rejection of the tender of the petitioner on the ground that the petitioner bei ng the local tenderer, the respondent No.5 cannot compete with the petitioner in bid price. It is the further plea of the petitioner that in consideration of th e said demand made by the respondent No.5, while opening the commercial bid of t he respondent No. 5 on 05/09/2012, the ONGCL did not open the commercial bid of the petitioner and resultantly the respondent No. 5 became the lone tenderer, wh ose commercial bid was opened and accepted.
Decision
6. It has been stated in the writ petition that on being queried, the petit ioner was apprised that the work executed by the petitioner earlier did not cove r the execution of processing of Oily Sludge and as such, the experience of the petitioner in execution of the particular work was lacking. 7. It is the case of the petitioner that the grounds assigned for rejection of the technical bid of the petitioner was after thought with a view to justif y the action in not opening the commercial bid and confining the same only to th e respondent No.5. 8. The petitioner had executed certain works under the respondent No.5 as s ub-contractor pursuant to the purchase orders dated 04/12/2007 and 12/05/20087 ( Annexure - B/1 and B/2). As claimed by the petitioner, the said works related to lifting of Oily Sludge till disposal of the same which invariably included the processing of the Oily Sludge. As regards the plea of the respondents that the petitioner did not annex along with the tender documents the Job Completion Cert ificate in respect of the particular Work Order dated 03/02/2011, it is the case of the petitioner that the other documents submitted along with the bid were su fficient to show the execution of the work. Thus, in a nutshell, the case of the petitioner is that he having conformed to the required experience of handling a nd processing of the Oily Sludge under the respondent No.5, his technical bid ou ght not to have been rejected on the ground of lack of experience, which accordi ng to him is an afterthought and only to suit the purpose of awarding the contra ct to the respondent No. 5. Denying the aforesaid pleas of the petitioner raised in the writ petitio 9. n, the respondent ONGCL has filed its affidavit, in which it has been stated tha t the petitioner having had no experience as per the requirement of ITB, his tec hnical bid was not acceptable. Referring to the particular Work Order dated 03/0 2/2011 issued by the respondent No.5 to the petitioner, it has been stated that he was allotted only with pre-operative activities like area dressing, leveling and operation assistance, supply of man-power etc. It has also been stated that inspite of granting opportunities, the petitioner failed to produce any documen t in support of his experience. As regards the extension of bid value, it has be en contended that the same cannot lead to the conclusion that the technical bid of the petitioner was accepted. As regards the works involved i.e. handling and processing of Oily Sludge of Assam Assets, Nazira at Sivasagar, it has been stat ed thus :- (cid:28)That the deponent admits the statements made in paragraph 3 of the writ petitio n to the effect of invitation of bid dated 24.2.2012 (Tender No. R16DC12002) for Handling and Processing of Oily Sludge of Assam Asset, Nazira, Sivasagar. It is stated that during drilling activities for the purpose of exploration of hydroc arbons i.e. oil, gas, some waste products are also general which includes chemic als, debris, sediments soils, water and some amount of hydro carbons in a mixtur e from which is altogether called (cid:28)Oily Sludge (cid:29). The methodology involved in sep arating the components of oily sludge through chemicals mechanized process throu gh special equipments is called (cid:28)Processing of Oily Sludge. (cid:29) 10. Referring to the work experience of the petitioner as mentioned in parag raph 7 of the writ petition, the respondent ONGCL in its counter affidavit has s tated thus :- (cid:28)Para 10. e not admitted by the answering respondents and the petitioners are put to the s trictest proof of the same. That the statements made in paragraphs 7 of the writ petition ar It is submitted that as per the information furnished by Respondent No.5 , they had awarded the work to the petitioner for necessary enabling work, to pr ovide support services by providing transportation, local manpower etc. The resp ondent No. 5 also stated that the scope of work in the work order clearly define d the nature of work executed by the petitioner and it cannot be construed that they are capable of providing technical support in the form of processing knowle dge or selection of appropriate technology. The work orders as well as job completion certificates of the petitioner do not state that process of sludge was ever done by the petitioner. The statement that the sub-contract involved processing of oily sludge cannot be established from the documents submitted in petitioner’s bid and presumption what so ever may be drawn in absence of requisite documents as per the specific provisions of tender in question. The petitioner only provided local manpower and they do not posses the processing knowledge of sludge processing. The present tender dated 24.2.20 12 is primarily for the processing oily sludge. Therefore the experience as show n by the petitioner through work order (Annexure-D of the writ petition page 116 ) issued by the Respondent No. 5 to the petitioner cannot be construed as experi ence for the current tender. That the statements made in paragraph 8 of the writ petition are incorre 11. ct and hence denied by the answering respondents. As confirmed by the Respondent No.5 (M/s. Balmer Lawrie), the petitioner was awarded peripheral (secondary) wo rk of handling and transportation of sludge, which is a simple job. The work inv olved only providing unskilled manpower and not processing of sludge, which requ ires technical support in the form of process knowledge or selection of appropri ate technology and the petitioner does not possess same. It is stated that mere receipt of work order does not mean that bidder has gaine d the requisite experience. In this regard clause 2.1(a02 of BEC quoted by petit ioner in para 4 may be referred. The petitioner was required to submit copies of respective contracts along with documentary evidence in respect of satisfactory execution / completion of contracts, in the form of copies of any of the docume nts (indicating respective contract number and type of services) (indicating res pective contract number and type of services), such as - (i) (ii) t (OR) (iii) (iv) Satisfactory completion /performance report (OR). Proof of release of Performance Security after completion of the contrac Proof of settlement / release of final payment against the contract (OR) Any other documentary evidence. While the petitioner has submitted copy of work order (Annexure-D), petitioner h ad failed to submit documentary evidence in respect of satisfactory execution of the above contracts in any of the forms listed in the tender BEC. In this regard clause 8.1 of Instructions to bidders of tender documents may be referred to which is as under : Advice to bidders for avoiding rejection of their offers: ONGC has to finalise its purchase within a limited time schedule. Therefore, it may not be feasible for ONGC to seek clarifications in respect of incomplete off ers. Prospective bidders are advised to ensure that their bids are complete in all re spects and conform to ONGC’s terms, conditions and bid evaluation criteria of th e tender. Bids not complying with ONGC’s requirement may be rejected without see king any clarification. ONGC was entitled to reject the petitioner’s bid at that stage itself. However, the petitioner was given an opportunity vide letter No. NZR/MM/SC/FEG/Oily Sludg e/42/2011-12 dtd. 23.05.2012 to provide documentary evidence towards meeting exp erience criteria within 12 days. But petitioner failed to do so. However again t o give benefit of doubt, as the work to petitioner was awarded by M/s. BalmerLaw rie and not ONGC, M/s. Balmer Lawrie was asked to certify completion of job by p etitioner as claimed by petitioner. Against ONGC’s specific query as to whether M/s. Raju Ali had completed job successfully M/s. Balmer Lawrie replied vide let ter no. ROFS/BD/NAZ/Lagoon/04 dtd. 4.6.12 as under :- ’LD was imposed on us mainly due to delay in lifting and transportation only. We could process contractual qty of 3400 KL of oily sludge without plant and equip ment by processing accumulated sludge in Gelekey within the contractual period.’ From the above it is apparent that the Respondent No.5 did not certify the compl etion of work as claimed by petitioner. It is submitted that petitioner cannot h imself claim that he had successfully completed the work. But his employer M/s. BalmerLawrie is the authority to certify completion of work awarded by them and tdhey have not done so. However, with out prejudice it is humbly submitted that work order dated 3.2.2011 for pre operative work and operational assistance with man power for processing sludge in pits at Nazira and Jorhat Sector of ONGC did not seen scope of work as two purchase orders dated 4/12/2007 (Annexure B1 of t he writ petition) and 12.5.2011 (Annexure B2 of the writ petition) awarded by Re spondent No.5 to the petitioner as these contracts does not involve processing o f oily sludge as part of scope of work. (cid:29) 11. In the counter affidavit filed by the respondent No.5 denying the plea o f the petitioner that he has got the experience of handling and processing of Oi ly Sludge, it has been stated that it had engaged the petitioner as sub-contract or for the scope of work comprising enabling work and for providing support serv ices by providing transportation, local men-power etc. and not for chemical and mechanized processing of Oily Sludge. Explaining the said process in paragraph 8 of the counter affidavit, it has been stated thus :- (cid:28) During drilling activities for the purpose of exploration of hydrocarbons i.e. Oil, gas, some waste products are also generated which comprises oil, chemicals , debris, sediments of soils and those are altogether called ’oily sludge’. The methodology involved in separating the components of oily sludge through chemica l and mechanized process by special equipment is called ’processing of oily slud ge’. The processing requires technical knowledge for suitable chemical treatment , selection of plant and machinery appropriate for particular nature of oily slu dge to be treated, on a case to case basis. The Respondent 5 has got the require d plant & machinery and know-how of such sludge processing system and have got p roven credential for execution of similar job in various Refineries and oil inst allations. The execution of job requires manpower for enabling work for installa tion of plant and equipment and for other support services. The respondent no.5 being a public sector enterprises under administrative control of Ministry of Pe troleum and Natural Gas, unable to engage local labour forces directly under its own payroll and execute the site work by engaging manpower from local agencies under its active supervision and technical guidance by its own technical manpowe r posted at site. (cid:29) (cid:28) & & & & & & &The respondent no. 5used to depute its expert team to site to study the nature of oily sludge to be processed to select appropriate process and equipmen t on a case to case basis. The local agency is engaged after selection of proces s for providing support services to do the are cleaning and enabling work for in stallation of plant and to provide support services by providing transportation, local manpower etc. The Respondent used to keep its own technical manpower at s ite for technical guidance and supervision of work. The petitioner M/s. Raju Ali , based at Naziram, assam, is one of such local agency who had been engaged by R espondent no.5 for providing local services as explained above for execution of two previous contracts received by the Respondent no.5 from the Respondent no.2 & &. (cid:29) 12. Explaining the work orders issued in favour of the petitioner by the res pondent No.5 vide orders dated 03/08/2007, 04/12/2007, 12/05/2008, 30/12/2010 an d 03/02/2011, it has been stated that the works done did not involve any chemica l and mechanized processing of Sludge by the petitioner and that the same was do ne by the respondent No.5 with its own plant and machineries. It has further bee n stated that the petitioner was engaged only for enabling work and support serv ices by providing transportation, local man-power etc. Referring to the particul ar completion of work Certificate dated 12/07/2012 issued by the respondent No.2 to the respondent No. 5 it has been stated that the quantity of Sludge lifted, loaded, transported and unloaded from Pits / Lagoon of Jorhat Sector to the cent ralized plant of the respondent No. 5 was less than the contractual quantity an d thus the petitioner failed to discharge its contractual obligation to the resp ondent No. 5 for which liquidated damage had been imposed by the respondent No.2 and accordingly the respondent No. 5 had deducted Rs. 90,064/- from the petitio ner’s bill towards deduction of Liquidated Damage (LD). Referring to the require d experience for awarding of the contract which has further been stated thus in reference to the Annexure B/1 and B/2 purchase orders dated 04/12/2007 and 12/05 /2008 : (cid:28)13. ion the answering respondent submits that the purchase order dated 4.12.2007(R-2 ) was only for collection and transportation of oily sludge from various locatio ns in tanks/truck to the centralized processing unit of Respondent No.5 at Gelek y. This is as per clause no. 4.1 of SCOPE OF WORK OF Special Conditions of contr act. It was the Respondent no.5 who had executed the chemical and mechanized pro cessing of sludge with its own specialized equipments under the direct supervisi on of its engineers posted at site. That in respect of the statements made in paragraph 14 of the writ petit Further, the answering respondent states that the second purchase order dated 12 .05.2008 (R-3) was for supply of local manpower. Such local manpower was taken t o assist Respondent no.5 for support services in its chemical and mechanized pro cessing of oily sludge. Here also it is Respondent no.5 who had executed the che mical and mechanized processing of oily sludge with its own specialized equipmen ts under the direct supervision of its engineers posted at site. The answering respondent states that the petitioner once again engaged by the Re spondent no. 5 for providing similar services as it is evident vide work order d ated 03.02.2011 (R-5). Like other assignments, it was again the Respondent no.5, who had executed the chemical and mechanized processing of oily sludge with its own specialized equipment under the direct supervision of its engineers posted at site. It is evident from the above that in none of the aforesaid assignments given by the Respondent no.5, the petitioner was responsible for chemical and mechanized processing of oily sludge. Therefore it is not true that petitioner had experien ce in processing of oily sludge as subcontractor in the above three jobs. (cid:29) 13. In the reply affidavit filed by the petitioner reiterating the stand in the writ petition, it has been stated that the petitioner having had the experie nce of handing and processing of Oily Sludge of Assam Assets working under the r espondent No. 5, his technical bid could not have been rejected. According to th e petitioner he having been approved as sub-contractor in respect of the works o f the ONGCL, the said authority had the knowledge as to the nature and manner of work executed by the petitioner. 14. Mrs. M. Hazarika, learned senior counsel assisted by Ms. R. Gogoi, lear ned counsel for the petitioner in her persuasive persuits submitted that it bein g a clear case of arbitrariness and unfairness in action by the respondent ONGCL , there has been violation of Article 14 of the Constitution of India requiring interference of this Court in the matter with appropriate direction to the respo ndents. Referring to the documents available on records, she submitted that the unfairness on the part of the respondents in dealing with the case of the petiti oner is writ large on the fact of it. According to her, it is a case of deprivat ion of the petitioner by not treating him equally with the respondent No. 5 lead ing to violation of Article 14 of the Constitution of India. Countering the above argument, Mr. G. N. Sahewalla, learned senior couns 15. el assisted by Mr. B.K. Das, learned counsel representing the respondent ONGCL s ubmitted that it is not a case for interference on the basis of the plea raised by the petitioner. He submitted that as to whether the petitioner had conformed to the requirements of the experience envisaged in the ITB is a matter to be dec ided by the Tender Committee and the said Committee having found the petitioner lacking in experience of handling and processing of Sludge rightly rejected his technical bid. Referring to the decision reported in (2012) 8 SCC 216 (Michigan Rubber (India) Ltd. Vs. State of Karnataka and others ), he also submitted tha t the process adopted and the decision taken by the ONGCL being fair and reasona ble, is not open to judicial review under Article 226 of the Constitution of Ind ia. 16. Mr. M.K. Choudhury, learned senior counsel assisted by Mr. N. Baruah, le arned counsel representing the respondent No. 5 also submitted that the writ pet ition is misconceived and does not disclose any ground warranting interference w ith the action taken by the ONGCL. He submitted that the petitioner being a sub- contractor under the respondent No.5 was entrusted with the works referred to in the purchase orders which did not include handling and process of Sludge, which require expertise in the field. 17. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also perused the entire materials on recor ds. I have also gone through the file produced by Mr. B.K. Das, learned counsel representing the ONGCL. My findings and conclusions are as follows. 18. Annexure-III to the ITB defines the scope of work as follows :- Name of Work : Handling of Oily sludge (Lifting, loading, transportation, unload ing, processing & disposal) for Assam Asset on lump sum turnkey basis (cid:28)SCOPE OF WORK (cid:28)Carry out de-oiling of 8000 KL oily sludge available at ONGC Assam Asset (7000 KL at fields of Nazira sector and 1000 KL at fields of Jorhat sector) using mech anized / chemical /combination processing system on turnkey basis. The work Hand ling of oily sludge includes Lifting, Loading, Transportation and Unloading of o ily sludge from pits / lagoons and its processing thereafter. Processing include s separation of debris, sediments/solids, water and maximum recover of hydrocarb on for recycling. The processing units/equipment’s should be brought and re-assembled near the Wor k Site. Feeding of the sludge to the vendor’s processing unit is to be done by t he vendor from the Pit/Lagoon using an appropriate mechanism. The process must h ave appropriate debris handing facility / equipment. After completion of work Co ntractor is required to demobilize its plant/equipment’s from ONGC premises. All electrical, piping, civil work including fencing of the site, if required, is i ncluded in scope of work. The effluent from processed sludge is to be stored in PCC pit, to be constructed by the contractor, lined with HDPE sheet required thickness to meet the APCB/CP CB requirement. The solid waste from processed sludge is to be stored in a pit a t the designated site (identified by ONGC) and handed over to ONGC covered with a layer of earth for further bio-remediation. (cid:29) 19. rk in question specified, interalia, are as follows :- Laying down the technical part of SCC, the contractor’s scope for the wo 7. (cid:28)Special conditions of contracts The processing units / equipment should be brought and re-assembled near the Work-site. Feeding of the sludge to the contractor’s processing unit is to be done by the contractor from the Pit/Lagoon using an appropriate mechanism. 8. Contractor has to submit Process methodology in details including PFD/P& ID, footprint area of the plant etc. for processing of the oily sludge proposed to be adopted for the work along with the bid. The process must have appropriate debris handing facility, Demulsifier o 11. r any other chemical can be used for proper separation of oil-water emulsions in the process. Contractor should undertake to recover maximum possible hydrocarbon pres 13. ent in the sludge so that the separated solids to have oil less than 10% (W/W) a nd the recovered oil after processing of sludge to have BS&W less than 8% (V/V) based upon the test. The oil content in separated effluent shall have to be less than 100 PPM. (cid:29) Annexure-IV to the ITB laying down bid evaluation criteria specified int 20. eralia as follows :- (cid:28) B.1 The following vital technical conditions should be strictly complied with failin g which the bid will be rejected. Technical rejection criteria REJECTION CRITERIA Bid should be complete and covering the entire scope of job/supply and s 1.0 hould conform to the Scope of work/Technical specifications indicated in the bid documents, duly supported with technical catalogues/literatures wherever requir ed. Incomplete and non-conforming bids will be rejected outright. 2.0 Eligibility and experience of the bidder : 2.1(a)1. The bidder should have minimum two (02) years of operational exp erience in providing services of handling, transportation, processing using mech anized /chemical/ combination processing system & disposal of oily sludge in a R efinery /Petro-chemical / Oil & Gas related company during the last 05 years. 2.1(a)2. Bidder should have executed at least one (01) number of contract of providing services of handling, transportation, processing using mechanized / chemical combination processing system & disposal of at least 2000 m3 of oily sludge in a Refinery / Petro-chemical / Oil & gas related company during the las t 05 years. The five years period will be reckoned from the closing date of the present tend er. To this effect, Bidder should submit copies of respective contracts, along with documentary evidence in respect of satisfactory execution of each of those contr acts, in the form of copies of any of the documents (indicating respective contr act number and type of services), such as - (i) Satisfactory completion / perfor mance report (OR) (ii) proof of release of Performance Security after completion of the contract (OR) (iii) proof of settlement / release of final payment again st the contract (OR) (Iv) any other documentary evidence that can substantiate t he satisfactory execution of each of the contracts cited above. (cid:29) 21. The ITB in question was in respect of the work of handling and processin g of Oily Sludge of Assam Assets. While it is the case of the petitioner that he conforms to the requirement of the experience referred to above according to th e respondent ONGCL, the petitioner does not conform to the requirement of said e xperience and accordingly his technical bid has been rightly rejected. In suppor t of the claim of the petitioner he has enclosed the Annexure B/1, B/2, C/1, C/2 and D Work Orders. Annexure-B/1 Purchase Order dated 04/12/2007 is on the subje ct of handling of Oily Sludge and did not include processing. Similarly, the Ann exure B/2 purchase order dated 12/05/2008 pertain to supply of manpower and oper ational assistance and does not refer to any handling and processing of Oily Slu dge. In both the work orders, referring to the scope of work, it was indicated t hat the same would be as per the subject tender and Special Conditions of Contra ctor enclosed. However, the petitioner had chosen not to enclose the copies of t he Special Conditions of Contract pertaining to both the work orders. 22. Be that as it may, on perusal of both the work orders, nothing is discer nible that the same pertained to handling and processing of oily sludge. Be it s tated here that the said two work orders had been issued by the respondent No.5 (A Govt. of India Enterprise) to the petitioner as sub-contractor. Although, ref erring to Liquidated Damage (LD) clause in the Annexure B/2 purchase order dated 121.5.2008, it was contended that penalty being levyable per date on delay at t he rate of daily loss in sludge processing quantity, the same itself would indic ate that the petitioner was engaged in sludge processing but the said contention is misplaced, inasmuch as, as per the said clause, penalty was levyable for the loss in sludge processing quantity, which does not mean that the petitioner him self was engaged in sludge processing. What was mentioned in the LD clause was t hat penalty would be levyable for the loss in sludge processing quantity. The pe titioner’s task in the matter was supply of manpower and operational assistance and not processing of sludge. It was in that context, for any delay in the job e ntrusted to the petitioner, penalty was levyable for the loss in sludge processi ng quantity. 23. Annexure C/1 is a Job Completion Certificate dated 15.2.2010 which itsel f shows that the job was of handling of oily sludge. Same is the case with Annex ure C/2 Job Completion Certificate also dated 15/2/2010. Annexure-D is another w ork order dated 3/2/2011 entrusted to the petitioner by the respondent No.5 and the subject itself indicates that the job was pre-operative work and operational assistance with manpower for processing of sludge in Pits at Nazira and Jorhat sector of ONGCL. As the letter disclosed, the work involved was operational assi stance for mechanized processing of oily sludge. Thus, the petitioner was engage d for operational assistance only and not for handling and processing of oily sl udge. 24. Above being the position, if the ONGCL rejected the technical bid of the petitioner on the ground of being not experienced in handling and processing of oily sludge, no fault can be attributed to it. 25. Carrying / performing the works of pre-operative activity of certain wor ks cannot be construed as experience for the main work. As noted above, the peti tioner was only allotted with pre-operative activities like area dressing, level ling and operation assistance, supply of manpower etc. The methodology involved in separating the components of oily sludge through chemical mechanized processi ng through special equipments is called (cid:28)processing of oily sludge (cid:29). The respond ent No. 5 had awarded the aforementioned works to the petitioner for necessary e nabling work only to provide support services by providing transportation, local manpower, etc. None of the Job Completion Certificates states that processing o f sludge was ever done by the petitioner. The petitioner was required to submit copies of respective contracts along with documentary evidence in respect of sat isfactory execution / completion of works involving handing and processing of sl udge which he failed to submit. 26. I have gone through the file in which the impugned decision has been tak en. On perusal of the same I do not find any infirmity in the decision making pr ocess. The tender committee in its threadbare discussion and upon evaluation of the bid documents of both the petitioner and the respondent No.5 took the consci ous decision to reject the petitioner’s bid and the 3rd party, namely, M/s. Conm at Systems Private Ltd. and recommended the respondent No.5 for price bid openin g. It was indicated that bid of the petitioner was technically not acceptable. T hereafter the commercial bid of the respondent No. 5 has also been accepted. 27. Be it stated here that by an interim order dated 11.9.2012 it was provid ed that the respondents would not award the contract without the leave of the Co urt. However, the said order has been modified by the Division Bench in WA No. 2 89/2012 vide order dated 18/10/2012 allowing the ONGCL to award the contract, su bject to further orders in the writ petition, after passing a speaking order giv ing due consideration to the claim of the petitioner that he had the requisite e xperience. 28. Pursuant to the said Division Bench Order, the ONGCL authority has passe d a speaking order on 22/10/2012 with due intimation to the petitioner. By the s aid order, it has been conveyed that the petitioner did not conform to the requi rement of handling and processing of sludge and that work order and completion d ocuments submitted by him pertaining to only collection and transportation of oi ly sludge and does not include handling and processing of oily sludge. By the sa id order, it has also been conveyed that although the petitioner was asked to su bmit documentary evidence in respect of certain work orders but the same was not complied with by the petitioner. Referring to the particular clarification of t he petitioner dated 8/6/2012 along with the additional set of documents, the aut hority has furnished the necessary clarification in the speaking order. It appea rs that pursuant to the said speaking order, the respondent No.5 has been awarde d with the contract. 29. The speaking order and the order awarding the contract to the respondent No.5 are not under challenge in this proceeding. However, that aspect of the ma tter need not detain us in view of the findings and conclusions recorded above. It is well settled that in absence of any prejudice to public interest, the Writ Court exercising its power of judicial review under Article 226 of the Constitu tion of India shall not interfere with the award of contract pursuant to a tende r process unless the same is shown to be the product of arbitrary, irrational an d unfair exercise of power. As has been held by the Apex Court in Tata Cellular Vs. Union of India reported in AIR 1996 SC 11, if after taking into account all relevant considerations, a decision has been arrived at to award the contract, t he Writ Court will be slow in interfering with the decision. As discussed above, I do not find any compelling need to interfere with the decision arrived at by the ONGCL authority. 30. The decision in Michigan Rubber (Supra) on which Mr. G.N. Sahewalla, lea rned counsel representing the ONGCL has placed reliance is to buttress the argum ent that if the State or its instrumentalities act reasonably, fairly and in pub lic interest in awarding contract, interference by Court is very restricted sinc e no person can claim a fundamental right to carry on business with the Govt. or its instrumentalities. It cannot be said to be a case of adopting a decision by the ONGCL with malafide exercise of power to favour the respondent No.5, A Govt . of India Enterprise. It also cannot be said to be a case of adopting the proce ss or decision made as arbitrary and irrational requiring interference of this C ourt exercising power and jurisdiction under Article 226 of the Constitution of India. 31. nd accordingly it is dismissed leaving the parties to bear their own costs. For all the aforesaid reasons I do find any merit in the writ petition a