SC rejects Govt’s plea on CPV outsourcing tenders

The Supreme Court on Monday dismissed the Centre’s plea challenging a Delhi High Court verdict that quashed the tender process for outsourcing Consular, Passport and Visa (CPV) services at Indian missions in Abu Dhabi, Kuwait, Singapore and Canberra.

The top court, however, allowed the Ministry of External Affairs (MEA) and Engineers India Limited (EIL) to make temporary arrangements to ensure uninterrupted delivery of services while a fresh tender process is completed. “The SLP (special leave petition of the Centre) is dismissed.

“However, having heard learned counsel for the parties and taking note of the submissions made before us, we are of the view that no impediment should be caused to the day-to-day functioning of the concerned establishments pending the completion of the fresh tender process,” the bench said. To ensure continuity of services and compliance with the directions issued by the high court, the top court modified the impugned order.

“It shall be open to EIL and the MEA to make suitable interim arrangements for continuation of the subject services. Such interim arrangements may include engagement of the successful L-1 bidders whose performance has been found satisfactory, or any other agency, in such a manner as EIL and the MEA may consider appropriate.”

It, however, made clear that such an arrangement shall be purely temporary and not create any special equities in favour of any party, and remain subject to the outcome of the fresh Request for Proposal (RFP) process.

“The MEA shall ensure compliance with the earlier directions as well as the directions contained in this order and shall complete the fresh tender/RFP exercise as expeditiously as possible, preferably within a period of three months,” it ordered.

The bench clarified that this interim arrangement is made without prejudice to the rights and contentions of all parties and no party shall claim any equity on the basis of this arrangement.

The bench was hearing the Centre’s petition against the July 17 Delhi High Court verdict directing the Government to issue a fresh RFP after finding serious deficiencies in the technical evaluation process. Appearing for the Centre, Solicitor General Tushar Mehta argued that the High Court’s decision had adversely impacted the functioning of Indian missions abroad, forcing embassy personnel to divert from their regular duties to manage visa-related services.

“Our embassy staff has been diverted. The tender holder always engaged in some litigation. But this time we decided to let them participate in the open tender process,” Mehta said. The bench orally said that the Government had “invited” the high court’s adverse findings by failing to record reasons for its evaluation. The solicitor general justified the actions and said that bidders could not be mechanically assigned comparative scores across different missions.

“We are dealing with four different embassies. Abhishek Singhvi’s client may get two marks in Abu Dhabi but five in Singapore. If the same marking is given, then something is fishy,” Mehta said.

Earlier on July 17, the CJI-led bench agreed to hear on July 20 the Centre’s plea against the High Court verdict setting aside the tender awarded to private firms for outsourcing CPV services at some Indian missions.

The High Court had directed the Centre to issue a fresh RFP, inviting fresh bids.

The Solicitor General said that fresh tenders were awarded following the procedure, but no new entity can start functioning straightaway, and as a result, such services have almost become dysfunctional.

In its verdict, the high court said that while taking the decision, the Centre relied on undisclosed comparative standards, made unexplained deductions under objective evaluation criteria, and adopted inconsistent marking. The high court said that these deficiencies struck at the very heart of transparency, fairness and equality in the public procurement process.

“The use of undisclosed comparative standards, unexplained deductions under objective criteria, inconsistent marking and complete absence of recorded reasons strikes at the heart of transparency, fairness and equality in public procurement. Therefore, exclusion of a lower bidder on the basis of an arbitrary evaluation process is not merely an individual grievance but also raises concerns of public interest under Article 14 of the Constitution,” the high court said.

The technical evaluation processes are set aside, the high court said. “Consequently, the award of tender in favour of the private respondents shall also stand nullified,” the court said.

The verdict was delivered on petitions filed by two unsuccessful bidders, E Trav Tech Limited and Verasys Limited.

The firms had participated in the tender process but were disqualified at the technical evaluation stage, since they had failed to secure the minimum 70 per cent marks to qualify for opening of their financial bids.