The Supreme Court has upheld a Delhi High Court verdict validating state-run NTPC Ltd’s decision to reject techno-commercial bid of private firm Montecarlo for development and operation of Dulanga coal mining project. “Where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint.
“Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills,” a bench headed by Justice Dipak Misra said. Rejecting Montecarlo’s appeal against the high court judgement, the bench, also comprising Justice U U Lalit, said that tenders, dealing with auction of “public largesse”, are on different footing and “bidder’s expertise and technical capability and capacity must be assessed by the experts”. NTPC had rejected the bid of Montecarlo for the development and operation of its Dulanga coal mining project on the grounds that the firm was not meeting qualifying criteria on techno-commercial evaluation. Montecarlo went to the high court against decision of NTPC. The high court rejected the plea.
The apex court, dismissing the appeal of the firm, said, “Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay.
But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint.”