Electronics Development Corporation Ltd. and Another Vs. M/S. Educomp Solutions
Ltd. & Ors  Insc 881 (29 November 2006)
Pasayat & S.H. Kapadia
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.
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
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
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.
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 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.
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.
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.
that as it may, the contract came to be awarded by AMTRON to NIIT.
by the aforestated action of AMTRON, the Consortium filed a writ petition in
the High Court of Guahati.
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.
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.
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.
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.
further urged that the matter involved disputed 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.
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.
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.
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:
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.
Similarly, NIIT will supply computer hardware, software, courseware and
connected accessories and provision of computer education service in 200
government schools on BOT basis.
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.
concluding we hereby expunge the stringent observations made by the High Court
in the impugned judgment against the Consortium.
also direct AMTRON to drop the blacklisting process adopted by it against 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.
appeals are, accordingly, disposed of with no order as to costs.