M/S Mcphar International PVT. LTD. vs. Deputy Director General

Facts

M/s.McPhar International Pvt. Ltd. (Petitioner) filed a writ petition challenging the technical evaluation process of a global tender issued by the Geological Survey of India (Respondent No. 1) for aerogeophysical surveys. The tender notice was dated 13.08.2019. The Petitioner was found not technically qualified, scoring 78.5 out of 100 marks, while two other consortiums scored 80 marks and were declared technically qualified. The Petitioner alleged that the evaluation was arbitrary and designed to disqualify them, potentially to favour foreign bidders. They challenged the proceedings of the Technical Evaluation Committee (Respondent No. 2) dated 06.01.2020, a communication dated 13.01.2020 from Respondent No. 4 to Respondent No. 1, and specific clauses of the tender proposal evaluation, including clause 3.14(6) and clause 3.13, as modified by a corrigendum dated 17.09.2019. The Petitioner also sought directions to implement the 'Make in India' policy.

Held

The Court held that it should refrain from interfering with the technical evaluation of tenders, as these are commercial functions best left to experts. The Court cited Supreme Court judgments emphasizing that the Writ Court lacks the expertise to examine the correctness of technical evaluations and contract awards. Regarding Clause 3.14(6), the Court found no arbitrariness or unreasonableness in the tender notification's evaluation clauses. Similarly, concerning Clause 3.13, the Court noted that while bidders could quote in INR or USD, the evaluation of all price bids would be done uniformly in INR using the Reserve Bank of India's reference rate on the day of opening. This ensured uniformity in evaluation, irrespective of the currency quoted. The Court also held that the 'Make in India' policy did not confer a right on the Petitioner, especially since they had not technically qualified. Furthermore, the Court dismissed the petition on the ground of non-joinder of necessary parties, as the two consortiums declared technically qualified would be directly affected by any order quashing the Technical Evaluation Committee's proceedings. These consortiums had acquired rights to open their financial bids and should have been heard.

Key Issues

1. Whether the Technical Evaluation Committee's proceedings dated 06.01.2020, which declared the Petitioner not technically qualified, are arbitrary, unreasonable, and unsustainable, thereby violating Article 14 of the Constitution of India? 2. Whether Clause 3.14(6) of the Tender Proposal Evaluation, which provides for negative marking for existing Project Implementing Agencies, is discriminatory and violative of Article 14 of the Constitution of India, particularly as it allegedly singles out the Petitioner? 3. Whether Clause 3.13 of the Tender Proposal Evaluation, as modified by the corrigendum dated 17.09.2019, which restricts Indian companies from quoting in USD while allowing foreign bidders, is violative of Article 14 of the Constitution of India? Petitioner's arguments: The Petitioner contended that their disqualification was arbitrary, citing higher marks awarded in previous projects. They argued that negative marking under Clause 3.14(6) was discriminatory as they were the only bidder subjected to it, favouring foreign bidders. Regarding Clause 3.13, they argued that denying them the option to bid in USD, while overseas bidders could, was discriminatory and led to inaccurate bid evaluation due to currency fluctuations. Respondents' arguments: The Respondents contended that the Court should not interfere with technical evaluation as it requires expertise. They argued that the evaluation was done as per tender conditions and that the Petitioner failed to implead necessary parties (the two technically qualified consortiums), making the petition liable for dismissal on this ground.