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CASE NO.: Appeal (civil)  5268 of 2006

PETITIONER: Assam Electronics Development Corporation Ltd. and Another

RESPONDENT: M/s. Educomp Solutions Ltd. and others

DATE OF JUDGMENT: 29/11/2006

BENCH: Arijit Pasayat & S.H. Kapadia

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(C) No.9804 of 2006) With

Civil Appeal No. 5266 of 2006 arising out of SLP(c)No.9796/2006 Civil Appeal No. 5267of 2006 arising out of SLP(c)No.14205/2006

KAPADIA, J.

       Leave granted. Assam Electronics Development Corporation Ltd. (for  short, ’AMTRON’) had issued a Notice Inviting Tender (for  short, ’NIT’) on 23.11.2005 inviting bids for execution of the  contractual work in the 4th Phase of Rajiv Gandhi Computer  Literacy Programme (for short, ’RGCLP) in 300 schools in the  State of Assam.  As per the tender notice the tenderers were  required to submit their bids in two parts, i.e., (a) Technical  Bid (b) Commercial Bid, in separate sealed envelopes for the  supply of computer hardware, software, courseware and  connected accessories and provision of computer education  service in government high schools on BOT basis.  The last  date and time for submission of tender was 19.12.2005 at 2  pm and the date and time for opening of technical bid was  fixed at 3 pm on the same date.  In the tender notice, it was  further stated that the date and time for opening of  commercial bid would be intimated separately to those bidders  who would qualify in the technical bid.

Subsequent to the issuance of the tender notice,  AMTRON carried out certain amendments to the tender  documents on 16.12.2005.  Under Clause 13 (f), (g) and (h) of  the General Terms and Conditions, AMTRON reserved its right  to evaluate technical bids and shortlisted the qualified  bidders.  The shortlisted bidders alone were to be informed  regarding the date of opening of the commercial bids.  The  commercial bids of shortlisted bidders alone had to be opened  and evaluated.  The shortlisted bidders were to be listed in the  descending order of their score on a scale of hundred, based  on the results of evaluation.  However, the criteria for  evaluation of the bid on a scale of hundred was not indicated  in the tender documents.  In short, in the tender documents  allocation of marks on a scale of hundred between technical  bids and commercial bids, was not indicated.  Further, the  details of the heads, on the basis of which marks would be  given, were also not disclosed.  

On 14.12.2005 the representative of M/s. Educomp  Solutions Ltd. and two others (for short, ’Consortium’) along  with other representatives of NIIT (successful bidder) attended

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the pre-bid meeting.  According to Consortium, in the said  meeting clarification was sought as to the criteria on the basis  of which the bids were to be evaluated.  It is the case of the  Consortium that in spite of their request to disclose the  criteria, the same was not done.  They were informed that the  criteria would be disclosed on 19.12.2005 when the bids were  to be opened.

On 19.12.2005 the technical bids submitted by the  Consortium as well as by NIIT were opened.  Both the bids  were found technically eligible and accordingly both the  qualified bidders were informed that the commercial bids  would be opened on 31.12.2005.  However, the formula of 60 :  40 was not disclosed.  The qualified bidders were, however,  asked to remain present on 31.12.2005.

On 31.12.2005 the commercial bids submitted by  qualified bidders were opened by AMTRON when it emerged  that the price quoted by the Consortium was substantially  lower than the price quoted by NIIT.  The Consortium had  quoted an amount of Rs.9.07 lacs per school as against the  amount of Rs.14.15 lacs per school quoted by NIIT.  Therefore,  the rate quoted by NIIT for the entire tender was much higher  than the rate quoted by the Consortium.

Be that as it may, the contract came to be awarded by  AMTRON to NIIT.

Aggrieved by the aforestated action of AMTRON, the  Consortium filed a writ petition in the High Court of Guahati.   It is not necessary to go into the chequered history of  litigation.  Suffice it to state that according to the Consortium,  AMTRON should have disclosed the basis of the scoring  methodology which was never disclosed till 31.12.2005.   According to the Consortium, the formula of allocation of  marks of 60 : 40 was never disclosed to the Consortium till  31.12.2005.  According to the Consortium, the details of  allocation were asked for by the representatives of the  Consortium in the pre-bid meeting held on 14.12.2005 when  AMTRON promised that they would disclose the above  methodology on 19.12.2005 when the bids would be opened.   In fact, on 16.12.2005 an amendment was made in the tender  documents/NIT to that effect.  According to the Consortium,  the above formula for allocation of marks was not disclosed  even on 19.12.2005.  In the above circumstances, the  Consortium invoked Article 14 of the Constitution alleging lack  of transparency, lack of accountability and non-disclosure of  relevant criteria. On the other hand, AMTRON and NIIT submitted before  the High Court that the criteria and methodology was  disclosed on 14.12.2005 itself; that, the Consortium was  aware of the methodology which AMTRON was to adopt in the  matter of awarding of marks; that, the Consortium had never  complained of about non-disclosure; that, there was no hidden  criterion evolved and applied to evaluate the bids; that, the  Consortium had given their bids without raising any objection  and, therefore, AMTRON contended that there was no reason  to open up the contract to judicial review.  AMTRON further  contended that NIIT was technically superior to the  Consortium as indicated by the marks secured by NIIT; that,  the Consortium had produced manipulated and fabricated  documents; and therefore, they were not entitled to any relief  under Article 226 of the Constitution.

It was further urged that the matter involved disputed

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questions of facts; that, there was a serious dispute between  the parties regarding disclosure of methodology for awarding  of marks; that, the Consortium had approached the High  Court with unclean hands; that, the Consortium had rested its  claim on forged documents and, therefore, in public interest  there was no reason for interference by the High Court under  Article 226 of the Constitution.

By the impugned judgment the High Court came to the  conclusion, based on records, that on 5.12.2005 the criteria  for evaluation of technical and commercial bids were fixed by  the expert committee of AMTRON.  According to the High  Court, the formula of 60 : 40 was fixed on 5.12.2005.   According to the High Court, on 14.12.2005 nine parties  appeared in the pre-bid meeting.  However, according to the  High Court, the said formula was not disclosed in the pre-bid  meeting.  According to the High Court the tender document  did not disclose the said formula; that in the minutes of the  meeting dated 14.12.2005 there was no discussion about the  methodology to be followed; that, in the said meeting there  was no discussion as to the basis on which marks were to be  allotted and, therefore, there was total non-disclosure of the  scoring methodology.  According to the High Court, AMTRON  did not disclose the above formula to the Consortium till  31.12.2005.  In short, for the above reasons, namely, non- disclosure of the scoring methodology, lack of transparency  and lack of accountability, the contract awarded to NIIT was  quashed by the High Court.  Hence the above civil appeals.

Having heard learned counsel for the respective parties,  we are of the view that on account of litigation, the cause of  education should not suffer.  There is considerable delay in  the implementation of the project on account of the legal  battle.  The project covers 300 schools.  To cut short the  litigation, the following order is passed: (1)     M/s. Educomp and others (Consortium) would  supply computer hardware, software, courseware and  connected accessories and provision of computer  education service in 100 government schools on BOT  basis. (2)     Similarly, NIIT will supply computer hardware,  software, courseware and connected accessories and  provision of computer education service in 200  government schools on BOT basis. (3)     The above shall be subject to matching of prices,  identification of schools by AMTRON, and upgradation of  courseware, CDs and books.  The monitoring of the above  exercise shall be under the supervision of AMTRON.  The  said exercise should be completed within two weeks from  the date of this judgment.

Before concluding we hereby expunge the stringent  observations made by the High Court in the impugned  judgment against the Consortium.

We also direct AMTRON to drop the blacklisting process  adopted by it against the Consortium.

In the light of what is stated above, we are not required to  go into the merits of the matter.  All allegations and counter  allegations are given up by the respective parties.  In public  interest we have worked out the matter as indicated above.   

Civil appeals are, accordingly, disposed of with no order  as to costs.