Summary
Rejection of the firm’s technical bids was sustained under the tender’s related-firm and SS-class eligibility requirements. The authorities could consider unchallenged adverse workload remarks against its sister company, whose directors were the firm’s partners. The firm also failed the incorporated-company requirement applicable through SS-class criteria. Although the Court rejected an inflexible joinder rule and accepted that the firm could contest adverse material concerning its sister company, no interference with the rejection was warranted.
Issues
- What judicial-review limits applied to the technical-bid rejection.
- Whether all other bidders had to be joined and whether the firm could dispute adverse material concerning its sister company.
- Whether related-firm remarks and SS-class eligibility justified rejection.
Provisions considered
- Clause 1.19, MES Manual of Contracts, 2007Common partners and directors established a business relationship permitting consideration of sister-company adverse remarks. (¶¶ 23–24, 29–30)
Held
- Tender review requires restraint and attention to public interest, with intervention for arbitrariness, irrationality, bias, mala fides or perversity rather than substitution of the court’s preferred technical assessment or reasonable interpretation. (¶ 6–20)
- Other bidders were not necessary parties to this challenge at the technical-rejection stage, before any successful bidder existed. The firm could contest adverse sister-company material used against it despite that company not independently challenging it. (¶ 21–22)
- The tender and its administrative appeal were contractual administrative decisions rather than judicial or quasi-judicial determinations. In this context the authorities could explain rejection in their writ counter-affidavit. (¶ 25)
- An arbitral award favouring the sister company remained binding unless set aside and could not supply an adverse ground. However, extensions on another delayed contract did not exonerate performance; unrepresented-against adverse remarks and the common business relationship could be considered. (¶ 26–30)
- The SS-class requirement restricted eligibility to incorporated companies. The tender expressly required unlisted contractors to meet the same enlistment criteria, so the petitioner firm was independently ineligible. (¶ 31–33)
Result
Special leave petitions dismissed, giving reasons for the dismissal ordered on 21 June 2019. Pending applications, if any, also dismissed.