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The Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping As per the notice inviting tenders, the bids received after the specified date and. Chennai Metropolitan Water Supply And Sewerage Board (cmwssb) - Tender Notification, Tender Corporation, Direct Tender, Government Tender India, Public Tenders Worldwide. Supplies Print Date: Due Date: CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD . superscribed with the Auction cum Tender No, Date, the name of the.
It is further decided to withhold the payment till finalising the risk and cost of work by calling fresh tenders, and further to forfeit the security deposit. The reason stated by you, vide your reply letter dated The tender of the petitioner being the lowest was accepted.
The petitioner was thereafter asked to show cause as to why action should not be taken against the petitioner for the fraudulent act in supplying inferior quality machines, ie. There is no necessity to go into the merit of decision at this stage, as the impugned order cannot be sustained, as it does not meet the requirements of established law, that an order even if administrative which affects civil rights of the party has to be a speaking order giving detailed reasons for arriving conclusions arrived at.
In Kranti Associates4 this Court after considering various judgments formulated certain principles in SCC para 47 of the judgment which are set out below: This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
We, therefore, heard the submissions of the learned counsel made on the subject matter of the Writ Petition. In this order, we refer to the status of the parties as described and narrated in the Writ Petition. The above said Tender provided for three options for erecting the plants, viz.
The technical criteria and the financial criteria to be submitted were also specified in the notice inviting tenders. Apart from the above, it was specifically provided that all bids must be accompanied by a bid security EMD of a value of Rs. It was also stipulated that the above said bid security amount should be enclosed for each option individually for which the bidder choose to bid. One other relevant factor in the notice inviting tenders was, that the Technical Bid envelope and Price Bid envelope must be placed in two independent covers duly sealed and delivered with the Contracts and Monitoring of CMWSSB.
It was further stipulated that the respective bid security EMD amount to be accompanied, the bids should be submitted in a separate sealed cover and kept in the Technical bid envelope. As per the notice inviting tenders, the bids received after the specified date and time would be summarily rejected. The scope of work to be undertaken by the selected bidder was to carry out and complete the work of implementing of Sea Water Desalination plant on DBOOT basis at Minjur, Chennai which included the provision of required pipeline of appropriate size, pumping machinery and construction of pump house to project the water to the existing underground reservoir of CMWSSB at Red Hills which is located at about 32 k.
Again in the 'Procedure for Bidding', it was specifically stipulated that in order to be eligible for bidding, each bidder on its own or on a joint venture basis should satisfy the minimum eligibility criteria as laid down in the applicable "Notice Inviting Tender" issued by CMWSSB. A reading of the stipulations contained in the Notice Inviting Tender, disclose that apart from technical criteria and financial criteria, the furnishing of bid security depending upon the options for which the bid is to be submitted was made a condition precedent for accepting the tender.
The tender documents were to be submitted in a sealed cover before It also provided for a pre-bid meeting on at Here again, it was mentioned that if a bidder was found technically qualified for more than one option, the Final Bid Security to be deposited by him would correspond to the highest capacity option. The specific descriptions to be shown in the respective envelopes for the three different Parts have also been described under the said Clause.
The prescription made in the Notice Inviting Tenders to the effect that the Bid Security envelope should be placed inside the Technical Bid envelope also thus stood modified.
In other words, the three different Parts, viz. The Form and Evaluation of Proposals as contained in the 'RFP' dealt with the manner in which the various Parts of the Bid should be submitted by a bidder as well as the procedure of the 'Bid Opening and Evaluation. In the 'Bid Opening and Evaluation part, as first stage of Evaluation, it is stipulated that CMWSSB would first open the Bid Security and technical Bid envelopes and assess whether the bidder fulfils the minimum qualifying criteria and whether the bids are responsive.
It is also stipulated therein that the Board should assess whether the proposal is in accordance with the guidelines stipulated in the 'RFP' document, viz. As per the said Clause, if the bidder failed to fulfil the minimum qualifying criteria, he would stand disqualified and his bid has to be returned.
It is in the above said background of the stipulations contained in the ''RFP'', the case of the petitioner requires to be considered.
In the above background, the other facts relating to the Bid Proposal submitted by the petitioner are also required to be stated.
The petitioner is stated to have expressed its option to participate in the above said Bid. The representative of the petitioner attended the pre-bid meeting on and it is relevant to state that in that meeting, no query was raised on behalf of the petitioner.
To a specific question put by us to the learned counsel appearing for the petitioner, it was admitted that no query as regards the submission of the EMD was raised on behalf of the petitioner in the said meeting. Khrunichev Centre, a Russian Government body to participate in above tender. As a Russian Government body, they are exempted from tender bonds, e.
Hence we request you to kindly approve and exempt them from submission of tender bonds. It is relevant to mention that the said communication was not sent by the petitioner. It is stated that about 26 bidders purchased the bid documents. On the last date for submission and opening of the bid viz. Of which, one was the petitioner and the other was stated to be one Bakeman Projects Limited, Israel.
The remarks of the Tender Scrutiny Committee was stated to have been placed before the Tender Committee on when the Tender committee passed a resolution accepting the recommendations of the Tender Scrutiny Committee to reject both the tenders on It was only thereafter onthe publication of Notice inviting fresh tenders were called for, which provoked the petitioner to file the present Writ Petition.
The Writ Petition came to be filed on and the interim stay of confirmation which was initially granted on came to be affirmed subsequently on It is stated that in the re-tender process, the tender documents were opened on and that the petitioner who submitted its tender on the second time also did not furnish necessary EMD, namely, the Initial Bid Security.
The Chennai Metropolitan Water vs M/colorky.infochev State Research on 14 October,
He also claims himself to be duly constituted Power of Attorney acting for and on behalf of the petitioner. At this juncture it will have to be stated that when we called upon Mr. Parthasarathy, learned counsel for the petitioner to produce the Power of Attorney said to have been executed in his favour of the deponent, he submitted that such power was by way of a National Agent Agreement as between the petitioner and the Proprietory concern, called the First Planet Engineering, belonging to the deponent.
A copy of which had been filed in the typed set of papers filed in the Writ Petition which is dated A perusal of the said agreement only shows that it provided for the terms and conditions as regards the manner in which the business as between the petitioner and the concern called Frist Planet Engineering is to be regulated. Parthasarathy, later submitted that the Power of Attorney in Russian language was submitted in Part A of the Bid documents. We looked into the said document as found in Part A which had been written in a language claimed to be Russian language.
1. NTID 17396818
In any event, it is relevant to state that neither the National Agent agreement dated or the so called deed of Power of Attorney in Russian language were not executed in the required stamp value in respect of a power of attorney to be valid as prescribed in the Stamp Act.
By virtue of the nature of the transactions involved in this bid, the Power claimed by the petitioner would fall within Article 48 b of the Indian Stamp Actas and by which, the said power should have been made in a Rs. In any event, it is not known whether the said Power of Attorney empowered the deponent to the affidavit to launch and pursue the litigation on behalf of the petitioner.
Admittedly, there is no Power of Attorney filed by the petitioner in this Writ Petition authorising the deponent to the affidavit to launch the present writ proceedings.
Therefore, in our opinion at the very out set, it will have to be held that the Writ Petition filed by its so called Power of Attorney holder cannot be maintained at all and on that score, this Writ Petition is liable to be rejected in limine. However, we do not propose to reject the Writ Petition on that technical ground. Therefore, we proceed to decide the issue involved on merits.
Parthasarathy, learned counsel for the petitioner in his submissions, raised the following contentions: Therefore, the petitioner's bid ought not have to been rejected; 4 the petitioner offered to supply water at a competitive rate which ought to have been considered in Public Intent in the light of severe water crisis prevailing in the city of Chennai; 5 the rejection of the petitioner's tender was tainted with mala fides since the petitioner refused to accede to the demand of bribe by the highly placed officials of CMWSSB as well as the concerned Ministers; and 6 the process of opening of tender was not carried out in the presence of Tender Scrutiny Committee as prescribed under the provisions of the Tamil Nadu Transparency in Tenders Act, The learned counsel relied upon the observations of the learned Single Judge in his order dated in support of his submission.
As against the above submissions, Mr. As regards the exemption claimed by the petitioner, the learned Addl. Advocate General would submit that at no point of time either prior to the submission of the tender or on the date of opening of the tender, any general order of exemption as provided under the provisions of the Tamil Nadu Transparency in Tenders Act, was produced by the petitioner.
In fact, according to the learned Addl. Advocate General, the so called letter said to have been issued by ISRO, dated was found to be a forged one, inasmuch as the authorities of ISRO themselves have confirmed that such a communication never emanated from their Office.
As regards the non-communication of rejection order, the learned Addl. Advocate General would submit that there was no obligation to communicate the order of rejection and that in any event, the petitioner was duly informed of the rejection which was also acknowledged by the petitioner as reflected in the petitioner's own communication dated addressed to the Superintending Engineer of CMWSSB.
As regards the contention of mala fides and demand of illegal gratification, the learned Addl. Advocate General would state that in none of the correspondence to the CMWSSB, there was any reference to any particular individual or officers or the concerned Ministers who is said to have made any demand of bribe and therefore, the said submission does not merit any consideration.
As regards the constitution of Tender Scrutiny Committee, the learned Addl. Advocate General placed before the Court the concerned proceedings of the CMWSSB constituting the Tender Scrutiny Committee and also submitted that the tender documents were opened in the presence of the members of the Tender Scrutiny Committee who have also initialled in all the tender documents perused by them.
When the learned counsel for the petitioner produced a xerox copy of a communication dated said to have been sent by First Planet Engineering to the Hon'ble Chief Minister in the course of the hearing of this Writ Petition onin order to show that there was a reference to one Mr. Mohan Raghavan who made a demand of bribe from the petitioner as well as from other senior Russian Diplomats claiming himself to be a representative of the Managing Director and senior officials of CMWSSB, the learned Addl.
Advocate General pointed out that this communication has been suddenly and surprisingly produced on behalf of the petitioner for the first time and that there was no reference to the said communication in any of the affidavits filed by the petitioner in this Court. He also pointed out that there was also no proof for having sent such a communication said to have been forwarded to the Hon'ble Chief Minister.
As regards the contention that the petitioner's query relating to exemption was not duly replied, the learned Addl. Advocate General submitted that that cannot be construed as a query as the same did not relate to the technical aspects of their bid. According to him, when the CMWSSB replied as many as queries of 26 bidders and when the Initial Bid Security was a pre-condition, there was no question of the said issue being treated as a query as claimed by the petitioner.
According to the learned Addl. Advocate General, the said contention of the petitioner cannot also be considered. Advocate General further submitted that on the opening date of the tender, namely,the petitioner's representative was present and the tender documents were opened in the presence of the members of the Tender Scrutiny Committee as disclosed by their initials found on the Tender Documents.
The learned Additional Advocate General also brought to our notice the common supporting affidavit filed by the Tender Scrutiny Committee members in support of his submission.
In his reply, Mr. Parthasarathy, attempted to point out that the initials of the members of the Tender Scrutiny Committee found on the tender documents and the common supporting affidavit differed, without realising that while in the affidavit they had put their full signatures, whereas in the tender documents, they had only put their initials.
Having considered the submissions of the learned counsel for either parties, and also the material papers, we find that the main question to be decided in this Writ Petition is as to, whether the rejection of the petitioner's tender by the second respondent Board was justified and for valid reasons. Only if that question is answered in the affirmative, the question of setting aside the second respondent's action for re-tender in its Notification dated will arise?
When we consider the main question, certain uncontraverted facts will have to be stated. They are, i the tender in question was governed by the stipulations contained in the book entitled 'Request For Proposal' 'RFP'. One other relevant condition is that the details in relation to the technical criteria and financial criteria to be submitted as per the prescribed format as shown in the Appendix are to be submitted along with the bid.
On a detailed consideration of the various stipulations contained in the ''RFP'' it will have to be held that such stipulations are to be scrupulously complied with by the tenderers if they are to insist for consideration of their tenders for the award of the work. The principles deducible from the above are: The modern trend points to judicial restraint in administrative action.
Kam-Avida Enviro Engineers vs 4 The Inventroy Control Manager on 31 January,
The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasiadministrative sphere.
However, the decision must not only be tested by the application of Wednesbury principle of reasonableness including its other facts pointed out above but must be free from arbitrariness not affected by bias or actuated by mala fides. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
Somayaji, there is no need to publish all the tender conditions in the paper publication. Even otherwise, in the cases on hand, the tender notification published in the Tamil Dailies there is a specific reference stating that apart from these conditions the intending tenderers are requested to go through the tender conditions and schedule thereunder. In the last paragraph, it is specifically stated tamil portion omitted It is clear that apart from the conditions referred to in the notification published in the dailies, the parties are advised to note full details available in the tender schedule.
Such information is not available in the case before the learned Judge. Accordingly while holding that there is no need to incorporate all the tender conditions in the notification published in the dailies, in the light of the specific information that intending tenderers are to verify all the details in the tender schedule, the first reason given in the above referred judgement is not applicable to the cases on hand.
The other reason given therein is that restricting the age of the vehicle for preference is arbitrary since the same has no nexus with the object that is to be achieved by the respondents. In Clause 9 c of the Tender of Indian Oil Corporation, it is stated that subject to fulfilment of other terms and conditions IOC would give preference to firstly Bitumen Truck Owner tendered among them to Bitumen Trucks less than 5 years old and age of vehicle should not exceed 12 years on the date of opening tender.
It is true that in that clause in order to prevent pollution, the age of the vehicle was restricted to 12 years and thereafter preference was given to the contractors whose vehicles are of the age of 5 years.
Here, in our case, in the first condition though it is stated that lorries of alone are eligible to participate in the tender, in the same clause, it is specifically stated that lorries prior to models will also be considered in case no sufficient lorries of and above model are available in the descending order of model.
As rightly argued by Mr. Somayaji, there is no complete prohibition or bar of the persons having vehicles of prior to It is true that in the second condition it is stated that if the newly participated tenderers and the existing contractors get qualified equally in both lowest rate and the model, preference will be given to the existing contractors running in the Board due to their experience.
Even this clause cannot be said to be either arbitrary or unreasonable. Here again, as rightly stated, because of their experience with regard to supply of water in time, their past performance, number of accidents etc. Learned senior counsel for the respondents by drawing my attention to the recent Division Bench decision of this Court in Swamidhas v. In the case before the Division Bench, the Government invited tenders for undertaking work of widening road, construction of bridges etc.
The Government stipulated that tender schedules should be issued only to those contractors owning Central Mixing Plant and paver. In other words, the ownership of machinery is condition precedent for issuance of tender schedule and has got nexus with the object of issuance of tender schedule.
The persons who are not having the machineries and unable to secure the tender schedule filed writ petitions before this Court.
The petitioners challenge the condition, namely, production of documentary evidence for ownership of the said machinery as arbitrary. Learned Single Judge has negatived their contention.
Hence, they preferred writ appeals. After referring to a decision in R. The authority tendering the work is only concerned about the execution and the money payable therefore.
In every contract, there will be clauses for due execution of the work and the consequences in default thereof. The laying of public road is important and urgent. Time schedule is three months from the date of awarding of contract. The authorities cannot and need not wait for the contractors like appellants to acquire the machinery by way of lease from other owners. In fact, that is a contingent situation.
Even after contract is struck, there is no guarantee that machinery will be provided and if provided, as to the quality and working condition of the machinery.
The public work cannot wait, risking such contingencies. What is more, in view of numerous such contractors owning machinery, by no stretch of imagination can it be said that the imposition of condition No.
In the circumstances, we find that the imposition of condition No. In the circumstances, the complaint of the appellants that they were unreasonably deprived of supply of tender schedules, cannot be countenanced and the writ appeals fail and are accordingly dismissed In United Labour Federation v.
Union of Indiareported in 1 CTCthe very same Division Bench has considered the scope of judicial review in a matter of awarding contract. In para 21, Their Lordships have held: Unlike in private contracts, the public contracts of the works relating to Government and Governmental Corporations should ordinarily be awarded by way of inviting tenders or public auction, i.
Such process also ensures transparency. But that may not be possible in all types of works relating to Government or its Corporations. Such exemption should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which, by themselves, are reasonable and not discriminatory. Such policy evolved in each case of exemption should be done on some rational and reasonable grounds. Once a policy decision is taken on relevant considerations, it is held by the Supreme Court that it is not for the Courts to meddle with the said policy.
The norms prescribed regarding qualification cannot be said to be arbitrary and the same have been prescribed only with a view to get experienced persons. This Court cannot sit on appeal on the decisions of the respondents.
Merely because the petitioners could not participate in the tender, the condition cannot be set aside. The petitioners would get a right to participate, only if they are qualified as prescribed in the tender conditions. Cochin International Airport Ltd. The following conclusion of Their Lordships is relevant: The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v.
The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations.
The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest.
But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decisionmaking process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness.