Tendering Authority Is Best Judge To Decide Capacity, Capability & Integrity Of Any Bidder: Calcutta HC

The Calcutta High Court observed that the tendering authority is the best judge to decide the capacity, capability, and the integrity of any bidder. 

The Court observed thus in a writ petition challenging the rejection of the bid in the technical evaluation round by the tendering authority of the Damodar Valley Corporation (DVC).

A Single Bench of Justice Shampa Sarkar said, “The tendering authority was the best judge to decide the capacity, capability and the integrity of any bidder. Time and again, the petitioners had failed to complete the works awarded. The fact that the petitioners were found technically suitable in other contracts, is of no consequence as the tendering authorities, had the right to make their own evaluation and come to their conclusion. All that the writ court can assess is whether the reason supplied by the authorities for cancellation of the tender at the technical round, was justifiable or not."

Advocate Subhabrata Datta appeared for the petitioners while Advocate Vineeta Meharia appeared for the respondents.

In this case, the Notice Inviting Tender (NIT) was for empanelment of transportation agencies with rate contract for evacuation of 40 LMT ash from ash ponds MTPS, DVC and nuisance free transportation along with disposal of the same in abandoned open cast mines/Store Quarries/NHAI project sites/any other designated places outside plant boundary of MTPS, DVC. The NIT was published on March 6, 2024, in respect of Mejia Thermal Power Station (MTPS).

The technical qualification as per the conditions of the NIT was that, the bidder should have the experience of completing similar works within India during the last 7 years, ending on the last day of the month previous to the one in which offer was invited. The petitioners’ bid was rejected in the technical evaluation round by the tendering authority of DVC and the decision was communicated to them via email. The ground for such rejection was poor performance at Raghunathpur Thermal Power Station (RTPS). Being aggrieved, the petitioners were before the High Court.

The High Court in view of the above facts, noted, “Under such circumstances, this court is of the view that an exceptional case of unjust treatment could not be made out by the petitioners. The authority reserved the right to evaluate the bid documents upon making an enquiry with regard to past performance in any of the projects under the DVC. With regard to the supply order of April 8, 2022, the poor performance was reported. Adequate documents have been annexed to the affidavit-in-opposition with necessary pleading which indicate that the performance of the petitioners was not satisfactory in the RTPS project.”

The Court said that, only because the petitioners' technical bids were accepted in respect of four other tenders, the same cannot be a ground for the writ court to interfere with the decision of the authorities in the facts and circumstances of the case as the decision was not against public interest.

Moreover, the Court noted that the fact that the petitioners were found technically suitable in other contracts, is of no consequence as the tendering authorities had the right to make their own evaluation and come to their conclusion.

“All that the writ court can assess is whether the reason supplied by the authorities for cancellation of the tender at the technical round, was justifiable or not”, it remarked.

Accordingly, the High Court dismissed the writ petition.

Cause Title- M/s. Sharma Transport Agency and another v. Damodar Valley Corporation and others

Appearance:

Petitioners: Advocates Subhabrata Datta, Subhojit Seal, and Ajeyo Chowdhury.

Respondents: Advocates Vineeta Meharia, Shounak Mukhopadhyay, Amit Meharia, Paromita Banerjee, Subika Paul, Sayan Dey, and Tamoghna Chattopadhyay.

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