Reliance
Airport Developers Pvt. Ltd Vs. Airport Authority of India & Ors [2006] Insc
758 (7 November 2006)
S.H.
Kapadia Kapadia, J.
Although,
I respectfully agree with the conclusion contained in the opinion of brother, Arijit
Pasayat, the importance of the scoring system in the tender process has
impelled me to elucidate and clarify certain crucial aspects.
Hence,
this separate opinion.
The
basic controversy in the present case is: whether the E.C. had exceeded its
authority in the assessment of technical pre-qualification.
In the
scoring system objectivity has an important role to play (Clause 5.4). In the
scoring system the identification of factors (including sub-factors),
allocation of marks to each of these factors (including sub-factors) and giving
of marks are three distinct and different stages. Clause 5.4 dealt with
assessment of technical pre-qualifications. Under that clause a scoring system
was to be applied based on the assessment of the Terms of the Offer against the
Technical Pre-qualification criteria. It further stipulated that assessment
shall be on absolute basis and not relative as between the offers. Under the
said system, each factor had to be allocated certain marks.
Objectivity
had to be provided in the allocation of marks (and not in giving of marks) to
each factor (including sub-factors).
This
was not done. For example, RFP required certain marks to be allocated for
absorption of existing staff. Greater the absorption, higher the marks to be
given. In the present case, the E.C. changed the factor, namely,
"absorption of employees" to the overall approach. This led to change
in priority.
Similarly,
in the RFP, the factor earmarked was "property development" which
E.C. compared to "infrastructure development". Experience in property
development is different from experience in infrastructure development.
Similarly, RFP had given weightage to aeronautical revenue whereas in
allocation of marks, E.C. obliterated the difference between aeronautical and
non-aeronautical revenues. The above examples are given only to show that
objectivity which was the underlying principle underlying clause 5.4 is
completely lost either by expanding the enumerated factors like aeronautical
revenue, overall capability vis-`-vis capacity to absorb existing work-force
and comparison of property development with infrastructure development or by
allocating un-even marks to sub-factors. In my view, E.C. had no business to
expand or narrow down the scope of any of the above factors as it was beyond
its authority and contrary to the scoring system.
With
these words, I agree with the conclusion contained in the opinion of brother, Arijit
Pasayat.
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