# M/S Rhetoric Technologies Pvt. Ltd. & Anr v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-30
- **Case number:** Writ C No. 6210 of 2022
- **Bench:** Mrs. Sangeeta Chandra, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-rhetoric-technologies-pvt-ltd-anr-v-state-of-u-p-ors-49634
- **Pages:** 13

## Headnote

(A) Constitution of India - Article 226 -
Scope of judicial review in contractual
matters - process of interpretation of
tender document - State government
tender - R.F.B. (Request for bid) - clause
13 and 15 of Section 2 - Instructions to
bidders, Section 12 - General Conditions
of Contract , Section 12(1)(iii) - R.F.B.
to be filed along with other technical
documents specified in the technical
conditions of the Contract , clause-iii -
"Bidders Document" , clause 2 (f) - bid
document had to be stamped and signed
by person duly authorized by Company
through its Board resolution - Clause 23
- representation and warranties of the
bidders - Clause 8 (f) - documents that
have
to
be
submitted
along
with
Technical bid of bidder.

(B)
Scope
of
judicial
review
in
Government tenders - limited - authority
which floats the contract or tender and
has authored the tender documents is
the best judge as to how the documents
have
to
be
interpreted
-
If
two
interpretations are possible then the
interpretation of the author must be
accepted - Principles of equity and
natural justice stay at a distance -
interpretation should not be second
guessed by a Court in judicial review
proceedings
-
Interference

with
judgement of expert consultants - issue
of technical qualifications of bidder -
High Court should not independently
evaluate technical bids and financial
bids of parties as an Appellate Authority
for coming to its own conclusion - unless
thresholds
of
malafide
intention
to
favour someone or bias, arbitrariness,
irrationality or perversity are met - if
decision taken purely in public interest -
Courts ordinarily should exercise judicial
restraint. (Para -15, 28, 29)

Transport Department issued a Request for Bid
(R.F.B.) - two-stage process - technical
evaluation and financial bids - Award of tender
- work related to Inspection and Certification
(I&C) - commercial vehicles - purpose of
certification of road worthiness - challenge -
minutes of the meeting - publication of results
-
R.F.B.
prohibited
any
improvement,
correction or alteration of documents - no
power of review given to Procuring Authority.
(Para -1 to 7 )
2 All. M/S Rhetoric Technologies Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
161
HELD:- Instructions to bidders (Section 2)
clearly stated that bid documents had to be
stamped
and
signed
by
authorized
representatives,
and
that
the
Transport
Department, Government of U.P. was the
Competent Authority. Transport Commissioner
was only an Agent of the Government of U.P. .
Court limited in its ability to evaluate the
Technical qualifications of bidders, as it has
already been done by two Experts' Committees
constituted by the Competent Authority and the
Procuring Authority. (Para -31,36 )

Writ Petitions dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,899 of 44,849. This is a partial read: ask again with offset=39899 for what follows._

160 INDIAN LAW REPORTS ALLAHABAD SERIES
as to why the re-counting has been
directed. Thus, this Court does not find any
illegality or infirmity with the reasons
recorded by the learned Election Tribunal
or the revisional Court while directing for a
re-counting. Accordingly, the said grounds
as taken by the petitioner are also rejected.

35. Keeping in view the aforesaid
discussion, no case for interference is made
out. The writ petition is dismissed.

36. Learned Standing counsel shall
inform about this order to the authorities
without waiting for a certified copy of this
order.
----------
(2023) 2 ILRA 160
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2023

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE MANISH KUMAR, J.

Writ C No. 6210 of 2022
along with
Writ C No. 6534 of 2022

M/S Rhetoric Technologies Pvt. Ltd. & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Aakash Prasad, Amitav Singh

Counsel for the Respondents:
C.S.C., Ajai Kumar, Ayush Chaudhary,
Rakesh Kumar Chaudhary, Vivek Kumar Rai

(A) Constitution of India - Article 226 -
Scope of judicial review in contractual
matters - process of interpretation of
tender document - State government
tender - R.F.B. (Request for bid) - clause
13 and 15 of Section 2 - Instructions to
bidders, Section 12 - General Conditions
of Contract , Section 12(1)(iii) - R.F.B.
to be filed along with other technical
documents specified in the technical
conditions of the Contract , clause-iii -
"Bidders Document" , clause 2 (f) - bid
document had to be stamped and signed
by person duly authorized by Company
through its Board resolution - Clause 23
- representation and warranties of the
bidders - Clause 8 (f) - documents that
have
to
be
submitted
along
with
Technical bid of bidder.

(B)
Scope
of
judicial
review
in
Government tenders - limited - authority
which floats the contract or tender and
has authored the tender documents is
the best judge as to how the documents
have
to
be
interpreted
-
If
two
interpretations are possible then the
interpretation of the author must be
accepted - Principles of equity and
natural justice stay at a distance -
interpretation should not be second
guessed by a Court in judicial review
proceedings
-
Interference

with
judgement of expert consultants - issue
of technical qualifications of bidder -
High Court should not independently
evaluate technical bids and financial
bids of parties as an Appellate Authority
for coming to its own conclusion - unless
thresholds
of
malafide
intention
to
favour someone or bias, arbitrariness,
irrationality or perversity are met - if
decision taken purely in public interest -
Courts ordinarily should exercise judicial
restraint. (Para -15, 28, 29)

Transport Department issued a Request for Bid
(R.F.B.) - two-stage process - technical
evaluation and financial bids - Award of tender
- work related to Inspection and Certification
(I&C) - commercial vehicles - purpose of
certification of road worthiness - challenge -
minutes of the meeting - publication of results
-
R.F.B.
prohibited
any
improvement,
correction or alteration of documents - no
power of review given to Procuring Authority.
(Para -1 to 7 )
2 All. M/S Rhetoric Technologies Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
161
HELD:- Instructions to bidders (Section 2)
clearly stated that bid documents had to be
stamped
and
signed
by
authorized
representatives,
and
that
the
Transport
Department, Government of U.P. was the
Competent Authority. Transport Commissioner
was only an Agent of the Government of U.P. .
Court limited in its ability to evaluate the
Technical qualifications of bidders, as it has
already been done by two Experts' Committees
constituted by the Competent Authority and the
Procuring Authority. (Para -31,36 )

Writ Petitions dismissed. (E-7)

List of Cases cited:-

1. Kanhaiyalal Agarwal Vs U.O.I. & ors. , AIR
2002 Supreme Court 2766

2. G. J. Fernandez Vs St. of Karn. & ors. ,1990
(1) SCR 229

3.
W.B.
St.
Electricity
Board
Vs
Patel
Engineering Company Ltd & ors., 2001 Vol. 2
SCC page 451

4. M.C.U. & anr. Vs B.V.G. India Ltd & ors.
,2018 Vol. 5 SCC 462

5. N.G. Projects Ltd Vs Vinod Kumar Jain & ors.
,2022 (6) SCC 127

6. Poddar Steel Corp. Vs Ganesh Engineering
Works & ors., 1991 (3) SCC 273

7. Agmatel India Pvt. Ltd. Vs Resoursys
Telecom & ors. ,2022 (5) SCC 362

8. Galaxy Transport Agencies Vs New J.K.
Roadways,
Fleet
Owners
&
Transport
Contractors, (2021) 16 SCC 808

9. Afcons Infrastructure Ltd Vs Nagpur Metro
Rail Corp. Ltd. ,(2016) 16 SCC 818

10.
Silppi
Constructions
Contractors
Vs
U.O.I.,(2020) 16 SCC 489

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J. &
Hon'ble Manish Kumar, J.)

1. Writ-C No. 6210 of 2022 (M/S M/S
Rhetoric Technologies Pvt. Ltd Thru.
Authorised Representative And Another
vs.State Of U.P. Thru.Prin.Secy.Transport
Sectt. And 6 Others is taken along with
Writ- C No. 6534 of 2022 (M/S Rosmerta
Technologies Ltd. Lucknow Thru. Its
Authorized Signatory vs. State Of U.P.
Thru. Prin. Secy. Transport Secrt.) as both
the writ petitions challenge the same
decision taken by the State Government on
almost same grounds.

2. The challenge in the writ petitions
is to the minutes of the meeting dated
23.06.2022 and also to the publication of
results dated 27.07.2022/28.07.2022 to the
extent that it qualifies and includes the
name of the Consortium of respondent nos.
5, 6 & 7. A further prayer has been made
for a direction to the respondent nos. 1 to 4
to proceed with the tender in terms of the
recommendations of the Bid Evaluation
Committee which was constituted by the
Transport Commissioner, copy of whose
recommendations
were
sent
by
the
Transport Commissioner to the State
Government for approval.

3. When the Writ- C No. 6210 of
2022 was filed, this Court was pleased to
pass a detailed interim order on 12.09.2022
which is being quoted hereinbelow:-

"Sri Vivek Kumar Rai, Advocate
has put in appearance on behalf of
respondent Nos. 5, 6 and 7.

The instant matter pertains to
award of tender for work related to
Inspection and Certification (I&C) of the
commercial vehicles for the purpose of
certification of their road worthiness.

Learned Senior Advocate, Sri
Jaideep Narain Mathur, assisted by Sri
Aakash Prasad, Shantanoo Saxena and Sri
162 INDIAN LAW REPORTS ALLAHABAD SERIES
Amitav Singh, learned counsel representing
the petitioners has submitted that the
respondent No.5, who is the lead member
of consortion selected as the lowest bidder,
had not submitted RFB with the bid
documents though "bid documents", as
defined in Clause 1(iii) of the definition
clause of the General Conditions of
Contract, means certain documents to be
prepared by the bidder under the contract
"in addition to the RFB". He has further
drawn our attention to the minutes of the
Technical Bid Evaluation Committee which
after evaluation of the technical bid of
participating the bidders had clearly found
respondent No.5 not to be technically
qualified whereas the said Committee has
found the petitioners to be qualified. It is
also the argument of the Sri Mathur that as
per
the
terms
and
conditions
any
recommendation made by the Technical
Committee ought to have been considered
by the Commissioner, Transport, U.P. and
not by the State Government. He has also
drawn our attention to the minutes of the
meeting held under the Chairmanship of
the Principal Secretary, Transport, a
perusal of which reveals that after the
recommendation of the Technical Bid
Evaluation Committee regarding technical
bid of all the participants which was held
on 03.06.2022, some representation dated
05.06.2022 was made by the respondent
No.5 and it is in the light of the said
representation
that
the
matter
was
considered again by a Committee headed
by the Principal Secretary, Transport
Department. It has further been argued by
Sri Mathur that the recommendation made
by
the
Technical
Bid
Evaluation
Committee, vide its decision taken in the
meeting held on 03.06.2022 was yet to be
considered by the Transport Commissioner
and the said recommendation was never
published and thus, it is intriguing as to
how this information was leaked to the
petitioners which allowed him to make
representation dated 05.06.2022. According
to the petitioners, the entire bidding
process was to be kept confidential and in
the instant case the confidentiality has,
thus, been breached.

Let instructions on the aforesaid
as also on all the issues involved in the writ
petition be obtained by the learned State
Counsel by tomorrow i.e. 13.09.2022.

List/put up this case tomorrow i.e.
13.09.2022.

We have been informed that
pursuant to the completion of the bid
process, Letter of Award (LoA) has not yet
been received by the respondent No.5. The
respondents are accordingly advised not to
issue the same or to act upon the same till
tomorrow i.e. 13.09.2022."

Thereafter, the matter was taken up on
past few occasions but could not be heard
on merits and the stay vacation applications
filed by the respondents remained pending
while interim order was extended from
time to time. The State respondents have
prayed that the matter to be heard and
disposed of expeditiously and it has been
heard for the past three days by us.

4. The case as set up by the
petitioners
is
that
the
Transport
Department, Government of U.P. issued a
Request for Bid (hereinafter referred to as
'the R.F.B.') for the operation of Inspection
and
Certification
Centre
(hereinafter
referred to as 'the I & C') in respect of
vehicles, at Lucknow, Uttar Pradesh for a
period of five years. The R.F.B. prescribes
the mode, manner and method of bid
submission and the necessary qualifications
required for such bidders. The bidding
process was to be a two stage process. At
the first stage, a technical evaluation had to
2 All. M/S Rhetoric Technologies Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
163
be done of all the bidders. Those bidders
who were found technically qualified were
to be considered for their financial bids.
The R.F.B. disabled any improvement,
correction or alteration of documents once
submitted. All documents had to be on
notorized affidavits, there was no power of
review given to the Procuring Authority.

5. It has been submitted by learned
Senior Advocate, Sri J.N. Mathur assisted
by Sri Amitav Singh and Sri Shantanu
Saxena, for the petitioner - M/S Rhetoric
Technologies Pvt. Ltd that a pre-bid
meeting was held on 17.01.2022 which
resulted in 49 suggestions being made and
clarifications were issued thereafter by the
Department. The date of submission of bid
was extended after issuance of such
corrigendum/addendum. On the last day of
submission of bids determined to be
19.04.2022, only six bids were received
including that of the Consortium of the
petitioner
and
the
Consortium
of
respondent nos. 5, 6 & 7. A six member
Technical Committee was constituted by
the Transport Commissioner to evaluate the
bids, at the technical stage. The Technical
Evaluation Committee met on three dates
and the combined minutes of the meeting
of the Technical Evaluation Committee
were published on 01.06.2022 where the
Committee found only three bidders to be
qualified including the petitioner- M/S
Rhetoric
Technologies
Pvt.
Ltd.
It
disqualified
three
bidders
including
Consortium led by respondent no. 5. On
05.06.2022,
the
Consortium
led
by
respondent no. 5 sent a representation
through
e-mail
to
the
Principal
Secretary/Additional Chief Secretary, Govt.
of U.P. explaining its deficiency and asking
for a review of the decision of the
Technical
Evaluation
Committee
constituted by the Transport Commissioner.

6. It has been argued by the learned
counsel
for
the
petitioner
that
strict
confidentiality had to be maintained by all the
bidders not only at the time of submission of
their Technical and Financial bids but also all
throughout the process of evaluation of the
bids and therefore it is incomprehensible as to
how the respondent nos. 5 to 7 came to know
the reason for rejection of their Technical bids
and sent an e-mail to the respondent no. 1.
The
Principal
Secretary,
Transport
on
23.06.2022 called a meeting of a fresh
Technical Evaluation Committee constituted
by him, containing two members of the
earlier Technical Evaluation Committee and
the
fresh
Committee
considered
the
representation of the Consortium led by
respondent no. 5. It has been argued that the
Committee so constituted was completely
illegal and the process adopted by it was
arbitrary as there was no power vested with
the State Government to interfere in the
tender process at any stage. In excess of the
jurisdiction vested in him, the respondent no.
1 constituted the Committee for re-evaluation
of Technical bids and against the clear
provisions of the R.F.B., it declared the
Consortium led by respondent no. 5 as
successful along with another bidder who had
earlier been declared unsuccessful by the
Technical Evaluation Committee constituted
by the Transport Commissioner. The results
of the technical evaluation of the Committee
consituted by the respondent no. 1 was
declared on 27.07.2022 and on the same date,
the financial bids were opened and the
Consortium of respondent no. 5 was declared
as L1 even though, it had quoted an
abnormally low price for running the I & C.

7. It is the case of the writ petitioner-
M/S Rhetoric Technologies Pvt. Ltd. that
after the enquiries were made, it came to
know of colourable exercise of power by
the respondent no. 1 causing undue favour
164 INDIAN LAW REPORTS ALLAHABAD SERIES
in respect of respondent nos. 5 to 7. The
petitioner wrote a letter to the Chief
Minister complaining of such illegalities
but no heed was paid and therefore the
petitioner approached this Court in this writ
petition.

8. It has been submitted by the
learned counsel for the petitioner that on
the basis of R.F.B., issued by the
respondent, copy of which has been filed as
Annexure no. 2 to the writ petition, that
under Section 2 i.e. Instructions to bidders,
clause 2 (f) clearly provided that the bid
document had to be stamped and signed by
the person duly authorized by the Company
through its Board resolution. Any bid not
complying with the terms and conditions as
set out in the R.F.B. and/or not signed by
the authorized person shall be rejected.

9. Learned counsel for the petitioner
states that bid documents have not been
defined but "Bidders Documents" has been
defined. He has referred to General
Conditions of Contract contained in Section
12 where in the definitions clause, subclause-iii, the "Bidders Document" has
been described as meaning, in addition to
R.F.B., those documents to be prepared by
the bidder under the contract including
without
limitation,
such
technical
documents specified in the technical
conditions of the contract and such data,
drawings, designs, information, calculation
etc.
and
all
other
information
and
documents including legible data relating to
execution of works or otherwise relating to
the performance of the Contract.

10. Learned counsel for the petitioner
has submitted that since the "Bidders
Documents" as defined under Section
12(1)(iii) refers to the R.F.B. to be filed
along with other technical documents
specified in the technical conditions of the
Contract, such R.F.B. was to be stamped
and signed and submitted along with the
Technical bid and a correct interpretation of
such condition was made by the Technical
Evaluation Committee of the Transport
Commissioner when it disqualified the
Consortium led by the respondent no. 5 on
the ground that the R.F.B. document was
neither signed nor stamped nor submitted
along
with
the
Technical
documents/Technical bid of the contesting
respondents.

11. Learned counsel for the petitioner
has also argued that the State Government
was not competent to review the minutes of
the meeting of the Technical Evaluation
Committee constituted by the Transport
Commissioner as the 'Competent Authority'
has been defined under Section 12 as the
Transport Commissioner. It has been
submitted that the contract had to be
entered between the successful bidder and
the Transport Commissioner and the
execution of the agreement between
successful
bidder
and
the
Transport
department was to be through the Transport
Commissioner as is mentioned in Section 1
i.e. the Introduction to the R.F.B., where
the Transport Commissioner has been
defined as the 'Procuring Authority' who
shall invite the e-tenders for execution from
bidders in the prescribed proforma, who
shall thereafter constitute a Technical
Evaluation Committee on terms and
conditions as contained in the R.F.B.

12. Learned counsel for the petitioner
has also referred to Clause 23 of the tender
document where the representation and
warranties of the bidders have been given
which relate to the undertaking given by
the bidder to the Transport Department,
Govt. of U.P. and has argued that since all
2 All. M/S Rhetoric Technologies Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
165
the undertakings were to be given in terms
and on the conditions as mentioned in the
R.F.B., the R.F.B. document itself had to be
signed, stamped and submitted by the
bidder.
He
has
referred
to
various
conditions regarding payment schedule etc.
and also statutory liabilities mentioned in
the R.F.B. to argue that unless the bidder
signed the R.F.B. and submitted it along
with the Technical bid, it could not be taken
by the Procuring Authority that he agrees
with all the conditions mentioned in the
R.F.B. and was ready to be bound by them
in case of dispute.

13. Learned counsel for the petitioner
has
placed
reliance
upon
judgement
rendered
by
the
Supreme
Court
in
Kanhaiyalal Agarwal Vs. Union of India
and others AIR 2002 Supreme Court 2766
(paragraph 6), wherein the Supreme Court
has observed that when an essential
condition of tender is not complied with, it
is open to the person inviting tender to
reject the same. Whether a condition is
essential or collateral could be ascertained
by reference to consequence of noncompliance thereto. If non-fulfilment of the
requirement results in rejection of the
tender, then it would be essential part of the
tender, otherwise it is only a collateral term
while placing reliance upon judgement
rendered by it in G. J. Fernandez Vs. State
of Karnataka and others 1990 (1) SCR
229.

14. It has also been argued by learned
counsel appearing for the writ petitioner in
Writ-C No. 6534 of 2022 that M/S
Rosmerta Technologies Ltd. Lucknow has
challenged the technical evaluation not
only of the petitioner- M/S Rhetoric
Technologies Pvt. Ltd but also the
respondent nos. 5 to 7, the Consortium led
by Hari Filling Centre on merits. Shri
Rakesh Kumar Chaudhary, learned counsel
appearing for the petitioner in Rosmerta
Technologies Limited has pointed out that
both the petitioner and respondent nos. 5
lack the technical qualification and the
experience that was required to run the I &
C and Rosmerta Technologies Limited
having already qualified and being found
competent to run the I & C on earlier
occasion, had necessary experience and
competence to do so. He has referred to the
abnormally low price quoted by the
Consortium led by respondent no. 5 in the
financial bid to say that even the Procuring
Authority, the Transport Commissioner had
expressed a doubt regarding the capability
of the respondent no. 5 to stick to its
undertaking regarding the low price for
running the I & C. He has on the question
of competence of the State Government
and also on the question of submission of
R.F.B. alongwith Technical bid documents
adopted the arguments made by Shri J.N.
Mathur, learned Senior Advocate on behalf
of the Rhetoric Technologies Ltd.

15. Shri Rakesh Chaudhary has
placed reliance upon two judgements of the
Supreme Court, which are namely:-

i) West Bengal State Electricity
Board Vs. Patel Engineering Company Ltd
and Others, 2001 Vol. 2 SCC page 451
(Paragraphs 24, 25, 27, 28, 31, 33, 34)

ii) Municipal Corporation Ujjain
and Another V. B.V.G. India Ltd and others
2018 Vol. 5 SCC 462 (paragraphs 42,43)

In West Bengal State Electricity
Board (supra), the Supreme Court observed
that negligent mistakes in bid documents
cannot be permitted to be corrected on the
basis of equity where the facts indicated
that it was not beyond the control of the
bidder
to
correct
the
error
before
submission of the bid; and that he was not
166 INDIAN LAW REPORTS ALLAHABAD SERIES
vigilant, and that he did not seek to make
corrections at the earliest opportunity. Strict
adherence to instructions to bidders is
essential and cannot be branded as a
pedantic approach. The scope of judicial
review in Government tenders is limited
but it cannot mean permitting the bidder to
correct the errors in the bid documents
which
were
not
merely
clerical
or
mechanical, when such corrections were
not permissible under the Rules governing
the process of tender. Also, it was observed
that there is no obligation to award the
contract to the lowest bidder and it is
always open to the Government or its
agency to negotiate with the next lowest
bidder and to try to reach an economically
viable and mutually acceptable price.

In Municipal Corporation Ujjain
(supra), the Supreme Court had observed
that the High Court should not ordinarily
interfere with the judgement of expert
consultants on the issue of technical
qualifications of a bidder when the
consultant had taken into consideration
various factors including basis of nonperformance of the bidder. It is not open to
the
Court
to
independently
evaluate
technical bids and financial bids of the
parties as an Appellate Authority for
coming to its own conclusion in as much as
unless thresholds of malafide intention to
favour someone or bias, arbitrariness,
irrationality or perversity are met. The
Court observed that if the decision is taken
purely in public interest, the Courts
ordinarily should exercise judicial restraint.

16. Learned counsel appearing for the
State-respondents, Shri Rajesh Tiwari,
learned Additional Chief Standing Counsel
assisted by Shri Nishant Shukla, learned
Standing Counsel have argued that both the
submissions made by the learned counsel
for the petitioner in Rhetoric Technologies
regarding the 'Competent Authority' and the
technical
disqualification
regarding
requirement of submitting the R.F.B. are
untenable on the ground that R.F.B. is only
an Invitation to Offer. He has referred to
the power of the State Government which
has been reserved in the tender document
given in Clause 13 and 15 of Section 2 i.e.
the Instructions to Bidders. He has referred
to Clause 13 (d) and (e) where the
Transport Department, Government of U.P.
could call for clarification from bidders and
the Transport Department, Government of
U.P. reserved the right to finalize the
technical evaluation by seeking such
clarifications and conducting an evaluation
before the time of opening of the financial
bid. He has also referred to Clause 15 of
Section 2 where the Transport Department,
Government of U.P. had reserved the right
to accept or reject any bid and to annul the
tender process and reject all bids, at any
time prior to the award of the contract,
without assigning any reasons for such
acceptance/rejection, without incurring any
liability to the affected bidder/bidders or
any obligations to inform the affected
bidder/bidders of the grounds for the
Transport Department, Government of
U.P.'s action. Such residual and supervisory
right once exercised by the Government of
U.P. would not give any cause of action to
any
of
the
bidders
to
claim
any
compensation for rejection of their bids by
the Transport Department, Government of
U.P.

17. The learned Counsel appearing for
the State respondents has also referred to
the definition of Competent Authority as
given under the General Conditions of the
Contract Section 12, where Competent
Authority has been defined as the Transport
Department, Government of U.P. and not
the Transport Commissioner.
2 All. M/S Rhetoric Technologies Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
167

18. Learned Standing Counsel has
also referred to definition of R.F.B. as
given under Section 12 (1) (XXIX) where
R.F.B. has been defined to mean request for
bid issued by the Transport Department,
Government of U.P. through e-Tender for
operation
of
vehicle,
inspection
and
Certification Centre at Lucknow, and
includes the bid document alongwith its
annexures, enclosures, schedules, Sections,
Forms,
Addendum/Corrigendum
and
clarification etc issued from time to time
during the bid process.

19. Learned counsel for the Staterespondents has pointed out that it is not
the bid document that would include the
R.F.B. but it is the other way round i.e. the
R.F.B. would include the bid document,
and only the bid document had to be
submitted by the bidders at the time of
technical evaluation and this fact was
clarified in the meeting of the Committee
that was constituted by the Competent
Authority i.e. the State Government, whose
minutes have been challenged before this
Court.

20. The learned counsel for the Staterespondents has led this Court through the
Sections which are relevant relating to
submission of technical documents. He has
referred to Clause 8 (f) which refers to the
documents that have to be submitted
alongwith Technical bid of bidder. The
Table 2 contained under Clause 8 (f) does
not call for the R.F.B. to be submitted
alongwith the Technical bid.

21. It has been argued by the learned
counsel for the State respondent that had it
not been required under the tender
document
to
submit
the
Evaluation
Committee's report to the respondent no. 1,
for
its
approval,
the
Transport
Commissioner would not have submitted
the recommendations of the Technical
Evaluation Committee for the approval of
the State Government at all. The result
published on 01.06.2022 was only a
recommendation
of
the
Technical
Evaluation Committee and not a decision
taken
by
the
Technical
Evaluation
Committee and therefore, it was submitted
to the Competent Authority for its approval.

22. Replying to the arguments made
by Shri Rakesh Kumar Chaudhary, learned
counsel
for
the
petitioner-Rosemerta
Technologies
Ltd.
regarding
the
incompetence of Rhetoric Technologies or
respondent no. 5 to 7 in terms of
experience, it has been argued that the
recommendations
of
the
Technical
Evaluation Committee constituted by the
Transport Commissioner have not been
challenged by the petitioner-Rosmerta
Technologies Ltd. and therefore, taking of
any
other
ground
to
challenge
the
competence of respondent nos. 5 to 7 to run
the I & C, would mean unraveling the
entire tender process without the challenge
being made to it in the first place.

23. The learned Standing Counsel
appearing
on
behalf
of
the
State
Respondents has placed reliance upon
judgement rendered by the Supreme Court
in N.G. Projects Ltd versus Vinod Kumar
Jain and others 2022 (6) SCC 127; and
paragraphs 13, 14, 15 and 23 thereof. The
Supreme Court observed that the owner or
the employer of a project, having authored
the tender documents, is the best person to
understand and appreciate its requirements
and interpret its documents. With regard to
the interpretation of terms of the contract
and the question as to whether a term of the
contract is essential or not is to be viewed
from the perspective of the employer and
168 INDIAN LAW REPORTS ALLAHABAD SERIES
by the employer. The Courts should not use
a magnifying glass while scanning the
tenders and make every small mistake
appear like a big blunder. In fact, the
Courts must give "fair play in the joints" to
the
Government
and
Public
Sector
Undertakings in matters of contract. The
Courts must also not interfere where such
interference would cause unnecessary loss
to
the
public
exchequer
and
while
entertaining
the
writ
petition
and/or
granting the stay which may ultimately
delay the execution of public projects, it
must be remembered that it might seriously
impede the execution of the projects and
disable
the
State
and
or
its
agencies/instrumentalities from discharging
their Constitutional and legal obligation
towards the citizens. It was observed by the
Supreme Court that the High Court should
be extremely careful and circumspect in
exercise of the discretion while entertaining
such petitions and/or while granting stay in
such matters. The Writ Court should refrain
itself from imposing its decision over the
decision of the employer as to whether or
not to accept the bid of a tender. The Court
does not have the expertise to examine the
terms and conditions of the present
economic activities of the State and this
limitation should be kept in view. The
Courts should be even more reluctant in
interfering with the contracts involving
technical issues as there is a requirement of
the necessary expertise to adjudicate upon
such issues. The Court should only
examine as to whether the decision making
process is after complying with the
procedure contemplated by the tender
conditions. If the Court finds that there is a
total arbitrariness or that the tender has
been granted in a malafide manner, the
Court should relegate the parties to seek
damages for the wrongful exclusion rather
than to injunct the execution of the
contract. The injunction or interference in
the tender leads to additional cost on the
State and is also against public interest.
Any contract of public service should not
be interfered with lightly and in any case,
there should not be any interim order
derailing the entire process of the services
meant for the larger public good.

24. Shri Prashant Chandra, learned
Senior Advocate assisted by Ms. Radhika
Singh, learned Advocate for the respondent
nos. 5 to 7 has placed before this Court the
Tender document and the requirement
therein of a pre-bid Bid Meeting to be held
between the prospective bidders and the
Officials of the Transport Department. It
was
in
the
pre-bid
Meeting
that
clarification was sought by the respondent
nos. 5 to 7 whether R.F.B. was to be
submitted alongwith the Technical bid and
it had come out during the deliberations
that only Bid documents had to be
submitted duly signed and stamped by the
authorized representative of the bidder, and
not the R.F.B, and therefore once the
Technical
Evaluation
Committee
constituted by the Transport Commissioner
made
a
recommendation
against
the
respondent nos. 5 to 7, the respondent nos.
5 to 7 made a calculated guess that because
the R.F.B. had not been submitted perhaps
they had been disqualified on this ground
alone. He has referred to paragraph 11 of
the counter affidavit filed on behalf of the
respondent nos. 5 to 7 in the writ petition
No. 6210 of 2022 to which no reply has
been given by the petitioners- Rhetoric
Technologies Pvt. Ltd. He has referred to
Clause 7 (b) of the Tender documents and
also Clause 8 (f) of Section 2, which is
Instructions to bidders. Clause 7 (b) refers
to Technical bid submission and it says that
the documents shall be filled as per the
formats provided in the R.F.B. with
2 All. M/S Rhetoric Technologies Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
169
required supporting documents. Technical
Bid should be duly signed by the
authorized signatory and scanned and
uploaded on the E-Tender portal. The only
requirement for Technical bid submission
as given in Clause 7 (b) was for the bidder
to fill in all information in the formats
provided in the R.F.B. There was no
requirement to submit a signed and
stamped copy of the R.F.B also alongwith
the Technical bids.

25. Shri Prashant Chandra, learned
Senior Advocate has also reiterated the
arguments regarding Clause 8 (f) which
have been advanced by the learned
Standing Counsel appearing for the State
respondents, where the documents that had
to be filed alongwith the Technical bid have
been mentioned in the Form of a Table
namely, Table 2, which only requires
notorized copies of the original certificates
and notorized undertakings to be given by
the bidder and notorized affidavits etc.,
including the letter of undertaking as given
in the Format/Form (B) duly signed by the
authorized
signatory
of
the
bidder
concerned. It has been argued that there is
no requirement in Table 2 of submission of
R.F.B. Twelve documents have been
mentioned therein and all such twelve
requirements
were
fulfilled
by
the
respondent nos. 5 to 7.

26. With regard to the competence of
the State Government, learned Senior
Advocate has adopted the arguments made
by the learned Standing Counsel on behalf
of the State respondents and has referred to
Clause 9 (c) which makes it amply clear
that it is the Transport Department,
Government of U.P. which had the right
reserved to it without limitation, and
without incurring any obligation or liability
vis-a-vis any bidder, to independently
verify and disqualify, reject/accept any or
all of the bids.

27. It has also been argued by learned
Senior
Counsel
appearing
for
the
respondent nos. 5 to 7 that the arguments
regarding abnormally low priced Financial
bid submitted by it has been appropriately
answered in the reply submitted by them on
08.08.2022 to the Transport Commissioner
as is evident from the recommendation of
the Transport Commissioner made in
favour of the successful bidder i.e.
respondent nos. 5 to 7. It has been argued
that in the letter dated 08.08.2022, the
respondent nos. 5 to 7 have clarified that
they have sufficient experience in various
States for running I & C and they wish to
enter the State of U.P. also. They have,
therefore, quoted a price which is attractive
and possibly the lowest, and they have
sufficient financial capability to run the I &
C as per the requirements of the Transport
Department. The respondent nos. 5 to 7 had
also clarified that since they were running I
& C in various States, they had the
technical
knowhow
and
qualification.
Moreover, they were also aware of the risk
of being blacklisted in one State i.e. the
State of U.P. in case they could not fulfill
their undertaking to run the I & C
successfully for the period as required
under the R.F.B and that they would not
abandon the running of the Contract mid
way and thus, mar their prospects in other
States as well. The respondent nos. 5 to 7
had given the Performance Bank Guarantee
for running the I & C, and were also aware
that such Performance Bank Guarantee
may be forfeited in case of failure to run
the I & C as per the conditions given under
the R.F.B. It is only on the basis of
representation/clarifications given by the
respondent nos. 5 to 7 through their letter
dated
08.08.2022
that
the
Transport
170 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner
by
his
letter
dated
16.08.2022 had recommended giving of the
contract to the Consortium of respondent
nos. 5 to 7, it being also the lowest
bidder/L-1 as found in the Financial bid.

28. The learned Senior Counsel
appearing on behalf of the respondent nos.
5 to 7 has placed reliance upon two
judgements of the Supreme Court namely: -

i) Poddar Steel Corporation
versus Ganesh Engineering Works and
others 1991 (3) SCC 273 (paragraph 6);

ii) Agmatel India Private Limited
versus Resoursys Telecom and others 2022
(5) SCC 362 (Paragraphs 2, 24, 25, 28, 30)

In Poddar Steel Corporation
(supra), the Supreme Court had observed
that it cannot be held as a matter of general
proposition that an Authority inviting
tenders is bound to give effect to every
term mentioned in the notice in meticulous
detail, and he is not entitled to waive even a
technical irregularity of little or no
significance. The requirements in the tender
notice can be classified into two categories
- those which lay down the essential
conditions of eligibility, and the others
which are merely ancillary or subsidiary
with the main object to be achieved by the
condition. In the first case, the Authority
issuing the tender may be required to
enforce them rigidly. In the other cases, it
must be open to the Authority to deviate
from and not to insist upon the strict literal
compliance of the conditions in appropriate
cases.

In Agmatel (Supra) the Supreme
Court was considering the issue as to
whether the High Court was justified in
interfering with the view taken by the
tender inviting authority. The Supreme
Court made observations in paragraphs
cited before us to the effect that the scope
of judicial review in contractual matters,
and particularly in relation to the process of
interpretation of tender document, has been
considered in various earlier judgements of
the Court and it referred to the three Judges
Bench decision of the Supreme Court in
Galaxy Transport Agencies Vs. New J.K.
Roadways, Fleet Owners and Transport
Contractors (2021) 16 SCC 808; and the
decision in Afcons Infrastructure Ltd versus
Nagpur Metro Rail Corporation Limited
(2016) 16 SCC 818; to say that interference
by the High Court in interpretation given
by the tender inviting authority of the
eligibility
terms
relating
to
the
requirements to be fulfilled by the bidders
should not be lightly interfered with.
Supreme Court observed that in a series of
judgements it had 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.
The
Constitutional Courts must defer to the
understanding and appreciation of the
tender documents by the owner of the
project
unless
there
is
malafide
or
perversity
in
the
understanding
or
appreciation or in the application of the
terms of the tender conditions. It is possible
that the owner or the employer of a tender
may give an interpretation to the tender
documents that is not acceptable to the
Constitutional Courts but that by itself is
not a reason for interfering with the
interpretation given.

29. The Supreme Court also referred
to the judgement in Silppi Constructions
Contractors Vs. Union of India (2020) 16
SCC 489; and observations made in
paragraph 20 thereof to the effect that the
authority which floats the contract or tender
and has authored the tender documents is
2 All. M/S Rhetoric Technologies Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
171
the best judge as to how the documents
have
to
be
interpreted.
If
two
interpretations
are
possible
then
the
interpretation of the author must be
accepted. The Courts will only interfere to
prevent
arbitrariness,
rationality,
bias,
Malafides or perversity. The Court further
observed that evaluating tenders and
awarding
contracts
are
essentially
commercial functions. Principles of equity
and natural justice stay at a distance. If the
decision relating to Award of Contract is
bonafide 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
power of judicial review will not be
permitted to be invoked to protect private
interest at the cost of public interest, or to
decide contractual disputes. The tenderer
or contractor with a grievance can always
seek damages in a Civil Court. Attempts by
unsuccessful tenderers with imaginary
grievances, wounded pride and business
rivalry, to make mountains out of molehills
of some technical/procedural violation or
some prejudice to self, and persuade courts
to interfere by exercising power of judicial
review should be resisted. Such interference
either interim or final may hold up public
works for years, or the relief and succour
to thousands and millions and may increase
the project cost manifold.