Summary
The Court upheld rejection of a technical bid for a JICA-funded high speed rail project where required forms were unsigned. Clarifications sought from bidders who had passed the initial scrutiny did not establish discrimination. Emphasising restraint in review of foreign-funded infrastructure tenders, the Court also upheld clauses preserving evaluation confidentiality until award and providing reasons thereafter. The High Court judgment was set aside and the bidder’s writ petition dismissed.
Issues
- Whether rejection for unsigned mandatory forms was arbitrary or discriminatory.
- Whether the High Court could invalidate tender confidentiality and post-award debriefing clauses and substitute its assessment of responsiveness.
Provisions considered
- Article 226, Constitution of IndiaTender review concerns legality of the decision-making process and calls for particular restraint where intervention delays a foreign-funded infrastructure project. (¶¶ 7.8-7.9, 10-11, 15)
Held
- The tender author and technical evaluator were entitled to apply the prescribed requirements and assess responsiveness. The unsigned forms were treated as a material deviation at the initial scrutiny; the Court could not replace the expert evaluation merely because another interpretation seemed possible. (¶ 6-7)
- The other bidders had cleared the first stage, whereas the writ petitioner had not. Clarifications concerning non-material matters at a later stage did not put those bidders in the same position or establish discriminatory treatment. (¶ 8)
- Judicial review of tender decisions remains concerned with mala fides, favouritism, arbitrariness and perversity, with attention to public interest. Foreign-funded mega projects require especially restrained intervention, having regard to the financier’s conditions, expert evaluation and consequences of delay. (¶¶ 7.8-7.9, 10-11, 15)
- Clauses 28.1 and 42.5 deferred disclosure of evaluation information and reasons until award; they did not permanently extinguish judicial remedies. The unsuccessful bidder could thereafter seek reasons and pursue available relief, including damages where appropriate. Invalidating these unchallenged clauses after knowing participation was erroneous. (¶ 14.1-14.5)
- Courts should consider the public and financial consequences of interim interference. The observations concerning notice of possible delay damages were cautionary guidance, not an award of damages in this case. The High Court judgment was set aside and the writ petition dismissed without costs. (¶ 15-16)
Result
Appeal allowed; High Court judgment set aside and respondent’s writ petition dismissed. No costs.