The question which arises for consideration in this case is, on the facts herein, are we to construe Clause 2.22.0 (ix) of the tender conditions as the law of the Medes and the Persians – rigid and unalterable, even if the justice of the cause warranted otherwise? (Para 3)
Under Clause 2.22.0 (ix), as set-out above, the appellant was to furnish the additional performance security within a period of two working days. It is not disputed that 13.03.2021 was a Saturday and 14.03.2021 was a Sunday and hence two working days would expire only on 16.03.3021. It is also not disputed that there was a nationwide employees strike in the nationalised banks on 15.03.2021 and 16.03.2021. (Para 6)
The additional performance security was submitted on 17.03.2021. The tendering authority, after satisfying itself of the existence of the strike, accepted the bid of the appellant and issued work order on 07.05.2021. Thereafter, the work commencement order was issued on 24.05.2021 to the appellant. Findings of the High Court on Clause 2.22.0 (ix) (Para 7)
Decision making authorities, like the tendering authority here, could not have turned a blind eye to undisputed ground realities and compelling necessities, like the one that presented itself here. After all, they do not live in ivory towers. (Para 24)
In this case, the tendering authority, after due verification, about the non-operation of the banks on 15.03.2021 and 16.03.2021 due to the strike by the bank employees, had accepted the additional performance security on 17.03.2021 and awarded the work to the appellant. It is well settled by a long line of judgments that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It has also been held that the constitutional courts must defer to this understanding and appreciation of the tender documents by the employer unless there is mala fide or perversity in the understanding or appreciation. [See Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited and Another, (2016) 16 SCC 818 and Uflex Limited Vs. Government of Tamil Nadu and Others, (2022) 1 SCC 165)]. (Para 25)
In this case, no mala fide has been alleged and the interpretation as adopted by the tendering authority cannot be said to be perverse. We also do not find that the decision to accept the additional performance security on 17.03.2021 and the issuance of the work order was arbitrary and irrational. We also do not find it to be a decision, which no responsible authority acting reasonably and in accordance with law could have reached. On facts, no case of prejudice to public interest by the award of the work has also been made out. In such circumstances, the High Court ought not to have interfered with the acceptance of the tender and the issuance of the work order in the present case. (Para 26)
SUPREME COURT OF INDIA
2023 STPL(Web) 202 SC
[2023 INSC 760]
M/S Om Gurusai Construction Company Vs. M/S V.N. Reddy & Ors.
Civil Appeal No. 5375 of 2023 [Arising Out Of Slp (Civil) No. 7092 Of 2022]-Decided on 23-8-2023
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