If the decision relating to the award of the contract is bona fide and is in public interest, courts will not exercise power of judicial review: Orissa High Court

Even if a procedural aberration, error in assessment, or prejudice to a tenderer is established, courts will not intervene in the exercise of judicial review if the decision pertaining to contract award is bona fide and in the public interest. The authority of judicial review will not be used to defend private interests at the expense of the public good or to resolve contract disputes. The judgment was passed by The High Court of Orissa in the case of M/s.I.V.T.V.L.T.(J.V.) V. Chairman-cum-Managing Director, MCL and others [WP(C) No.4500 OF 2021] by Single Bench consisting of Hon’ble Shri Justice. B.P. Routray.

The Petitioner is a joint venture company, participated in the bidding process invited by Opposite Party i.e., Mahanadi Coal Fields Limited by Notice Inviting Tender for the work. The technical bid was opened, where four bidders including the Petitioner and Opposite Party qualified. Petitioner objected to the technical qualification of Opposite Party and submitted representation to Opposite Party stating that the work experience certificate submitted by Opposite Party is not genuine and ought not to have been accepted.

The contention of the Petitioner that as per Clause-8(A) of the NIT, the work experience certificate has been defined to the effect that the bidder must have experience of work of similar nature valuing 50% of the annualised estimated value of the work put to tender. As per calculation, 50% of the annualised value of the estimated cost comes to Rs.4,18,31,738. The work experience certificate of Opposite Party filed of Rs.6,00,72,502, is not matching with the work order submitted by Opposite Party which has been annexed under Annexure-3 series. Therefore, the work experience certificate of Opposite Party is not a genuine document.

Opposite counsel refuted the case of the Petitioner by saying that Petitioner has not presented the correct facts in the writ petition. It is their case that Petitioner has submitted three work experience certificates to reveal his qualification in terms of Clause-8(A) of the NIT. The first certificate has been issued by M/s.Shyam Metalics and Energy Limited showing work done experience by the parties to the tune of Rs.6,00,72,502, and two other work experience certificates showing value of Rs.2,73,91,960/- and Rs.1,51,56,032/- respectively by M/s.Godavari Commodities Limited.

While relying on the Supreme Court in the case of Jagdish Mandal v. State of Orissa, the court held that “If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.”

The learned court while dismissing the petition observed that “the contention of the Petitioner does not appear to be factually correct. A perusal of the experience certificate of Opposite Party, the document at Annexure to the counter and the clarification under Annexure series reveals that the experience is regarding loading of raw materials only. In those documents, nowhere have the shifting charges been mentioned. Those documents speak of loading charges @Rs.10/- per MT plus GST. Therefore, we do not see any flaw in the tender process as alleged by Petitioner against Opposite Party.”

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