HC dismisses plea challenging fresh tender for allotment of Pakal Dul Hydro Electric Project

STATE TIMES NEWS
JAMMU: In a petition filed by Drangdhuran Hydro Power Consortium and others who entered into an agreement on 01.10.2013 for the submitting bid to the respondent No.1, in response to the NIT No.CVPP/PD/MW/RB/TK/2013 dated 19.06.2013 for turnkey execution of Pakal Dul (Drangdhuran) HE Project having a capacity of 1000 MW (4×259 MW) in District Kishtwar, Jammu.
The bid of the petitioners was found to be lowest. Subsequently, discussions were held wherein petitioner No.1 had been informed that though his bid was lowest but was found to be substantially higher than the estimated cost worked out by the CVPP (company) on the basis of estimates cleared by Central Electricity Authority/Sanctioned by the government of India.
Justice Tashi Rabstan of J&K High Court Jammu Wing after hearing Sr. Adv ZA Shah with Adv Vipin Gandotra for the petitioner whereas Sr. Adv Sunil Sethi with Advocates Ankesh Chandel and Parimoksh Seth appearing for the Chenab Valley Power Project Private Limited, dismissed the petition challenging the fresh tender notice and vacated the interim stay.
While dismissing the petition, Justice Tashi Rabstan observed that Pakal Dul HE Project is located on Marusudar River in District Kishtwar in Jammu and Kashmir. It involves transfer of Marusuadar River water to Chenab River upstream of Dul Dam of Dul Hasti HE Project. Palak Dul Project is a storage scheme and the gross storage of the reservoir is 125.4 Mcum. A maximum gross head of 417 m between the dam site at Drangdhun and power house site at Dul shall be utilized for power generation. For completion of the said project, International Competitive Bidding (ICB) was adopted for tendering for Turnkey Execution of Pak Dul HE Project. This comprised of two stage system of bidding, Stage-I (Technical and Qualification Particulars) Bids followed by Stage-II (Price) Bids. In response to Tender Notice dated 19th June 2013, five Consortia submitted their bids. The Stage-II Bids (Price Bid) were also submitted by all five Consortia on due date. Tender Evaluation Committee (TEC) was constituted by respondent CVPP to evaluate Stage-I Bid (Technical and Qualification Particulars) as well as Stage-II Bid (Price Bid) submitted by bidders. Four Bidders were considered techo-commercially responsive after detailed evaluation of Stage-I bid by TEC. The Stage-II (Price Bid) Bids of the four Bidders, who met the Qualification Criteria and whose Techno-commercial were found responsive by TEC with approval of competent authority, were opened by the Tender Opening Committee (TOC) on 3rd February 2014.
Petitioner company was assessed as lowest evaluated bidder by TEC. It was proposed to invite petitioner company for negotiation. The record reveals five meetings between June, 2014 to September, 2014 took place but of no yield. It appears that respondent CVPP, considering all aspects involved in Turnkey works, decided to cancel the “turnkey tender” and “invite fresh bids on package mode, so that CVPP incurs cost for only those events which actually occurs”. This was followed by impugned cancellation letter dated 16th June 2016. Two Notice Inviting Tenders have also been issued by respondent CVPP. One is dated 2nd March 2016, for Domestic Competitive Bidding for the work and package of “Construction of Diversion Tunnel (alongwith HM works) of Pakal Dul Hydroelectric Project”. Second Notice Inviting Tender is for International Competitive Bidding for the work and package of “Design and Construction of 2 nos. circular shaped Head Race Tunnels of length 7700 m each to be excavated by two new independent TBMs and Associated works for Pakal Dul HE Project”. Forthrightly saying, this Court cannot ask or foist respondent CVPP to stick to earlier Turnkey execution of Pakal Dul (Drangdhuran) Hydroelectric Project. Respondent CVPP has expert’s body available to take into account all facets as regards adoption of “turnkey execution” or “package mode” system. This Court cannot ask respondent CVPP that “turnkey execution” is in the best interest of CVPP. The reason being that it is in the field and domain of respondent CVPP and this Court cannot step into the shoes of CVPP to decide what would be and would not be better for CVPP. It is exclusive domain of CVPP and not that of this Court.
In the 231 pages judgment, Justice Tashi Rabstan observed that it may not be out of place to mention here that this Court cannot sit as a court of appeal as this Court does not have the expertise to correct the decision of respondent CVPP inasmuch as reviewing the decision of respondent CVPP would be substituting its own decision, without the necessary expertise which itself may be fallible.
This Court cannot scuttle or strangulate the freedom of contract of respondent CVPP and applying the foregoing parameters to the case at bar, this Court finds that the decision, impugned in the instant writ petition is immune from judicial review. Reliance is also placed on the decisions rendered by the Apex Court and Apex Court in one the judgment held that “When the authority took a decision to cancel the tender due to lack of adequate competition and in order to make it more competitive, it decided to invite fresh tenders, it cannot be said that there is any mala fide or want of bona fide in such decision. While exercising judicial review in the matter of government contracts, the primary concern of the court is to see whether there is any infirmity in the decision-making process or whether it is vitiated by malafide, unreasonableness or arbitrariness.” It was held that “The right to refuse the lowest or any other tender is always available to the government…. While so, the decision of tender committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the Appellate to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender.”
Justice Tashi Rabstan observed that while analysis, specially in absence of mala fide, prejudice, unreasonableness, arbitrariness, extraneous consideration or the decision being against public interest, the decision of respondent CVPP, cancelling “turnkey tender” as also petitioner’s bid and issuing fresh tender notices for “package mode”, need not be interfered with by this Court, is immune from judicial review in the given facts and circumstances. As a corollary, writ petition is devoid of any merit.