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Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one.
Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one.
Technical evaluation or comparison by the court would be impermissible
Technical evaluation or comparison by the court would be impermissible
“24. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review.
Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint.
Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.”
Montecarlo Ltd. v. NTPC Ltd., 2016 (15) SCC 272
“18. Judged by these parameters, it is clear that this Court must defer to the understanding of clauses in tender documents by the author thereof unless, pithily put, there is perversity in the author’s construction of the documents or mala fides…”
State of Madhya Pradesh and another v. U.P.State Bridge Corporation Ltd. And another, 2020 (13) SCALE 774
“14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings”.
M/s Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers v. M/s New J.K. Roadways, Fleet Owners and Transport Contractors and others [Civil Appeal No. 4107 of 2020 (Special Leave Petition (Civil) No. 12766 of 2020), dated 18.12.2020],
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