- (1.) The U.P. State Road Transport Corporation issued a tender dated 17.10.2014 inviting applications for cleaning of buses by Automatic Bus Washing Machines for 94 depots of the Corporation in the State of Uttar Pradesh. The petitioner and respondent no. 4 submitted their technical and financial bids. The technical and financial bids were opened on 9.2.2015 but for various reasons the bid was not finalised and subsequently the earnest money of the petitioner was returned and only then the petitioner came to know that the tender bid was cancelled. The respondent Corporation issued a fresh tender inviting applications for cleaning of buses by automatic machines for 95 depots. The petitioner and respondent no. 4 again applied and submitted their bids. The technical bid was opened on 18.2.2015 but the financial bid was not opened and subsequently the petitioner was informed that it will be opened on 20.2.2015 on which date the bid of respondent no. 4 was accepted and work order was issued on 19.3.2015. The petitioner being aggrieved by the tender process and allocation of the work order in favour of respondent no. 4 has filed the present writ petition contending arbitrariness in the exercise by the respondents in issuing the work contracts in favour of respondent no. 4.
(2.) Learned counsel for the petitioner submitted that in the first tender, invited by the respondents, the petitioner's bid was found to be lower than the bid given by respondent no. 4 and that the said tender was cancelled for vested reasons in order to give undue benefit to respondent no. 4 which they have now done in the second tender notice that was issued in February 2015. In furtherance of this submission, the learned counsel for the petitioner submitted that on the date when the financial bid was to be opened it was found that the seal containing the envelopes of the financial bids of the parties was tampered. The petitioner protested which failed and the financial bid of respondent no. 4 was accepted. The learned counsel further submitted that the reputation of respondent no. 4 is not such which warrants awarding of a contract and that one of the conditions which the respondents have to consider is the past experience of the tenderer and whether he had successfully completed the earlier contract granted to him. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in Raunaq International Limited vs. I.V.R. Construction Limited and others, 1999 1 SCC 492 wherein the Supreme Court has held in para 9: "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 of paramount importance are commercial considerations. These would be : (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfill the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post-contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction."
(3.) The learned counsel has also placed reliance upon the paragraphs 70, 74 and 77 of another decision of the Supreme Court in Tata Cellular vs. Union of India, 1994 6 SCC 651 on the question of the scope of judicial review in a writ jurisdiction and the broad principles as to what is the duty of the Court when it questions the veracity and legality of a contract. For facility, paragraph 77 of the said decision is extracted as under: "The duty of the court is to confine itself to the question of legality. Its concern should be: 1.whether a decision-making authority exceeded its powers? 2.Committed an error law, 3.committed a breach of the rules of natural justice, 4.reached a decision which no reasonable tribunal would have reached or, 5.abused its powers.";