The Delhi High Court on Wednesday set aside the technical evaluation process for outsourcing Consular, Passport and Visa (CPV) services at Indian Missions in Abu Dhabi (The UAE), Kuwait, Singapore and Canberra (Australia), holding that the assessment of bidders was vitiated by "arbitrariness, irrationality and lack of transparency" in violation of Article 14 of the Constitution.
A Division Bench of Justices Anil Kshetrapal and Shail Jain allowed a batch of petitions filed by E Trav Tech Limited and Verasys Limited, challenging their disqualification at the technical bid stage in tenders floated by the Ministry of External Affairs (MEA) for outsourcing CPV services at the four Indian Missions.
The Justice Kshetrapal-led bench held that while courts ordinarily do not sit in appeal over technical assessments by expert bodies, judicial review is warranted where the decision-making process is arbitrary, opaque and fails to satisfy the constitutional requirements of fairness, transparency and equality.
"The parameter-wise marks awarded to the Petitioners are vitiated by arbitrariness, irrationality and lack of transparency, rendering the impugned technical evaluations unsustainable under Article 14 of the Constitution," the Delhi High Court said.
It added that although the government had furnished parameter-wise marks following directions of the Supreme Court, it failed to disclose the basis on which those marks were awarded.
"The evaluation sheets neither identify deficiencies in the Petitioners' proposals nor disclose the comparative benchmarks applied while awarding proportionately lower marks under comparative criteria," the court judgment said, adding that the bidders were left without any means to ascertain why their "otherwise compliant proposals were considered inferior" to competing bids.
The Delhi High Court also found significant inconsistencies in the marking process, saying that materially identical proposals and supporting documents were awarded substantially different scores across different Missions without any recorded reasons.
"In the absence of any recorded reasons for such varying assessments, the distinct allocation of marks appears unsupported by any objective basis," it said, adding that consistency in evaluating substantially identical material is "an essential facet of a fair and transparent tender process".
Rejecting the Centre's contention that the petitions were barred by the principles of 'res judicata', the Delhi High Court held that the challenge arose from a fresh cause of action after the disclosure of parameter-wise marks pursuant to earlier court orders.
It also dismissed the argument that deficiencies in the bids had been explained during oral presentations before the Technical Evaluation Committees.
"Even assuming that such presentations formed part of the evaluation, they cannot substitute recorded reasons. If deductions were founded upon shortcomings noticed during such presentations, those shortcomings ought to have been reflected in the contemporaneous evaluation records," the judgment said.
Holding that the absence of recorded reasons constituted the "most fundamental infirmity" in the evaluation process, the Justice Kshetrapal-led bench said that merely communicating parameter-wise marks without disclosing the factual basis for deductions violated the General Financial Rules, 2017, the tender conditions and settled principles of fair administrative action.
"The failure of Respondent Numbers 1 and 2 to record and communicate reasons for the technical evaluation violates Rules 173(iv) and 189 of the GFRs 2017... rendering the decision-making process opaque, arbitrary and contrary to the principles of natural justice and fair administrative action," it held.
Setting aside the technical evaluations, the Delhi High Court also nullified the award of contracts in favour of the successful private bidders.
It directed the MEA and the concerned Indian Missions to issue fresh Requests for Proposal (RFPs) for procurement of CPV services at Abu Dhabi, Kuwait, Singapore and Canberra within one month and make sincere efforts to complete the tender process expeditiously.
However, the Delhi High Court permitted the existing service providers to continue operating until the fresh tender process is completed to ensure that there is no disruption in public services.
Picture Courtesy: THE CANADIAN PRESS/Jeff McIntosh
