Neither of the two companies has fulfilled the qualifying requirements stipulated by the Maharashtra State Electricity Board for the bidders. The bids were for the designing, engineering, manufacture, supply, erection and commissioning of large diameter pipes and steel tanks with all accessories and auxiliaries for the two 210 megawatt units of the Khaperkheda thermal power station. The technical director of the board recommended that the contract be awarded for this project to IVR Construction Ltd.

The board however granted it to Raunaq. The high court on being approached by IVR granted an interim order staying the operation of the letter of intentgranted by the board to Raunaq, which then appealed against this interim order to the apex court. The apex court set aside the interim order by declaring that a party like IVR which does not fulfill the requisite criteria and whose offer is priced higher than that of its nearest rival cannot approach the court for a stay of the award of a contract to the rival.

This effectively stops judicial review and thereby accountability to safeguard the public interest in such matters. For, relevant information of such projects would be known only to the bidding corporates, the general public being kept out of all the processes of awarding of contracts. Surely, the public is entitled to know, even at the instance of an unqualified rival, as to why and how the other admittedly unqualified corporate was given the award. If such rival corporates have no chance of getting interim orders, they will not approach the courts.

The public should not be denied the chance of ensuring the grant of such awards on the basis ofpublic interest. The Supreme Court has shut out this safeguarding of public interest through rival unqualified corporates after holding that the bid conditions for an unqualified corporate bidder can be relaxed for bona fide reasons if the bid document permits such relaxation and the decision is based on legitimate reasons after a fair consideration of all the offers.

But before coming to the conclusions in favour of Raunaq the court did not inquire as to whether any reasons had at all been stated by the board before admittedly relaxing these conditions. The court also didn't bother to know about the specifically admitted lack of experience of Raunaq in laying down the pipelines for a minimum total length of three km.

In the absence of such an examination the Court could not have applied the test of whether the relaxation was for bona fide reasons. Worse, the court concluded from the tender clause that not-withstanding the qualifications, the board reserves the right to assess the bidders' capability toperform, that this empowered the board to relax the tender conditions.

The apex court declared that price may not be the sole criterion for awarding a contract and that the expert's special knowledge plays a decisive role in deciding which is the best offer. The technical director in this case had, while pointing out the lack of fulfilment of the 3 km condition on the part of Raunaq and the two-year experience condition on the part of IVR, recommended the awarding of the contract to IVR.

The board now told the apex court through its technical director that the bid condition had been relaxed for Raunaq and its offer was accepted because of the price advantage vis-a-vis IVR. The court did not ask as to why or how this was done despite the earlier advice of the technical director.

This awesome destruction of judicial reasoning is exhibited further by five pronouncements. First: Parties approaching the court for interim orders in such matters must be made to suffer the costs of delaying projects if theyultimately fail though it is the duty of high courts to weigh the cost of stay before granting an interim order.

Second: The party in such cases must be made to deposit security for delay in the project due to the interim order with no requirement on politicians or administrators to furnish requisite information expeditiously.

Third: All this has been declared to apply to public interest litigation even though no such petition was involved in the case.

Fourth: The public should object to such projects not in courts but only at the time when politicians and administrators are considering these without any requirement on them to inform the public about the same.

Fifth: It is not stated whether the high court gave reasons for its interim order and in the absence of the same, how did the apex court find out that the high court was wrong?

The apex court could have remanded the matter back to the high court for a time-bound decision. Instead, it gave a final burial to the whole matter without therelevant reasons before it.