IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF

SRI LANKA

In the matter of an Application for mandates in

the nature of writs of Certiorari and Mandamus
under and in terms of Article 140 of the
Constitution of the Democratic Socialist
Republic of Sri Lanka.

1. Finco Technologies (Pvt) Ltd

CA/WRIT/591/2021 No.16, 5th Lane,
Galle Road, Colombo 03.
2. Jayasundara Mudiyanselage Ruwan
Rohana Bandara
Chief Executive Officer
Finco Technologies (Pvt) Ltd,
No.16, 5th Lane,
Galle Road, Colombo 03.

PETITIONERS
Vs.

1. Dr. G.L.K.Ekanayake
Director General
Institute of Sports and Medicine
No.33,
Maitland Place,
Colombo 07.
2. Ravindra Samarawickrama
The Secretary
State Ministry of Rural and School
Sports Infrastructure Improvement.
3. The Chairman
Ministry Procurement Committee
4. Dr.E.A.L.C.K.Edirisinghe
The Chairman
Technical Evaluation Committee
5. Dr. Daminda Attanayake
Member
Technical Evaluation Committee
The 2nd – 5th Respondents at:

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 State Ministry of Rural and School
Sports Infrastructure
Improvement,
12th Floor, West Tower,
World Trade Centre,
Colombo 01.
6. Anuradha Wijekoon
The Secretary
Ministry of Youth and Sports
No.09,
Philip Gunawardena Mawatha,
Colombo 07.
7. Techomedics International (Pvt)
Ltd
No.04, Dhammodaya Mawatha,
Pannipitiya Road,
Battaramulla.
8. P&T Trading (Pvt)Ltd
No.57/23,
Gallage Mawatha, Mirihana,
Nugegoda.
9. Hon. Attorney General
Attorney General’s Department,
Colombo 12.
RESPONDENTS

Before: Sobhitha Rajakaruna J.

Dhammika Ganepola J.
Counsel: Harsha Fernando with Chamith Senanayake and Yohan Coorey for the Petitioners
Sumathi Dharmawardana PC ASG with Amasara Gajadeera SC for 1st to 6th and
9th Respondents
Dr.Asanga Gunawansa with Nikita Gomez and Navindra Fonseka for the 7th
Respondent
Suren Gnanaraj with Rashini Dias Gunawardana for the 8th Respondent
Argued on: 06.04.2022, 27.04.2022, 10.10.2023
Written submissions: Petitioners - 25.04.2022
1 to 6 and 9 Respondents - 29.11.2023
st th th

7th Respondent - 05.04.2022, 24.11.2023

Decided on: 12.01.2024

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Sobhitha Rajakaruna J.

The Institute of Sports Medicine (‘Procurement Entity’) by way of the advertisement marked
‘P3’ called for tenders for “supplying, installation, commissioning, training and maintaining
of the equipment for the Human Performance Laboratory of the Institute of Sports Medicine”.
The Petitioners on 09.07.2021 allegedly relying on the assurances given at the pre-bid meeting
submitted their bid quoting a bid price of LKR 179,873,082.50 (excluding VAT). The
Petitioners filed the instant Application challenging the decision of the 1st to 6th Respondents
to award the above tender to the 7th Respondent and to reject the 1st Petitioner’s bid on the
grounds that it was non-responsive.

At the pre-bid meeting, the Petitioners raised concerns regarding how the specifications in the
bid document had been formulated alleging that such selection of specifications violates the
Procurement Guidelines. The Petitioners assert that the technical specifications in the bid
document were copied from a product catalog of a specific product known as ‘Vicon’, which
was offered by the 7th Respondent. The contention of the Petitioners is that by adopting such
technical specifications the bid has been tailor-made to benefit the 7th Respondent and it
amounts to ‘Vendor Bias’. It is averred that the Petitioners were assured by the 1st Respondent
regarding such complaints that the Technical Evaluation Committee (‘TEC’) would be
specifically instructed not to permit bias in favor of the product mentioned above leaving no
room for the procurement decision to be skewed unfairly and also that the technical
specifications would be evaluated while keeping in mind the concerns raised on behalf of the
Petitioners. Following the concerns raised on behalf of the Petitioners and some other bidders,
on 08.07.2021 an Addendum (bid addendum - 1) was issued under the signature of the 3rd
Respondent - Chairman of the Ministry Procurement Committee.

Bids were opened on 12.07.2021 and there were only three bids. Those were submitted by the
1st Petitioner, 7th Respondent and the 8th Respondent. The Petitioners state that,
notwithstanding their bid being the lowest substantially responsive bid, the Petitioners were
informed by letter dated 12.10.2021 (‘P13’) that the 7th Respondent “had been evaluated as
the substantially evaluated lowest responsive bidder for the contract”. According to ‘P13’, the
1st Petitioner’s bid has not been evaluated as substantially qualified during the technical
evaluation on the grounds of “failing to comply in two of the five major items considered major

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deviations according to the specific evaluation criteria adopted for the process with the remaining three
items being only partially complied technically in accordance with Section III. Evaluation and
Qualification Criteria, ITB 35.3 and ITB 35.4 of the Bidding document”. Further, the 7th Respondent
has been selected as the substantially evaluated lowest responsive bidder for the contract value
of LKR 248,588,726.30 (without VAT). The Petitioners contend that the decision to award
the bid to the 7th Respondent is among other things ultra vires, biased, unjustifiable, made in
breach of Rules of Natural Justice and is prejudicial to the interest of the Procurement Entity
and the State.

Halfway through the hearing in this Court, the parties agreed that this matter be dealt with
and determined solely on the basis of written submissions.

Firstly, I must consider the Preliminary objection raised by the 7th Respondent on futility. The
7th Respondent argues that granting the reliefs as prayed for in the Prayer of the Petition would
be futile and devoid of any practical effect on parties before the Court. The 7th Respondent
contends that it has completed in supplying, insolation, commissioning and training of the
Human Performance Laboratory of the Procurement Entity. As such, it is stated that the
contract entered into between the Procurement Entity and the 7th Respondent has now been
fully performed and the payment of up to 90% of the total contracted value has been settled.
Relying upon several judgments1 of the Superior Courts the 7th Respondent submits that it is
trite law that no court will issue a Writ of Certiorari or Mandamus, where doing so would be
vexatious and futile.

After reviewing all such authorities of higher courts, I take the view that the Writ Court is not
mandatorily bound to refuse an Application if it observes that

(a). granting a Writ would not be needful to remedy the grievances of the

Applicant,

(b). no purpose is served by issuing a writ.

1
See : JSC VTB Bank v Pavel Valerjevich Skurikhin (2022) EWCA CIV 1337; Mosley v Newsgroup
Newspapers Ltd (2008) ALLER (D) 322; P.S. Bus Company Limited v Members and Secretary of Ceylon
Transport Board (1958) 61 NLR 499; Samastha Lanka Nidahas Grama Niladhari Sangamaya and Others v D.
Dissanayake Secretary and Others (SC Appeal 158/2010); Credit Information Bureau of Sri Lanka v M/s
Jafferjee & Jafferjee (2005) 1 SLR 89; Siddeek v Jacolyn Seneviratne and Others (1984) Sri LR 83.

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None of those previous judgements have expressly curtailed the discretion of the Review
Court but have only implied that the Court, under usual circumstances, should not issue a
Writ if the result would be a futility. How the court should exercise its discretion upon an
objection on futility should be decided based on the facts and circumstances of each case, for
the best interest of justice, without restricting its jurisdiction to a rigid rule as such. Hence, I
decide, taking into consideration the circumstances of this case, to exercise the inherent
powers of this Court to examine the questions relating to the Petitioners’ alleged grievance,
especially considering the significant difference in value between the bid amounts offered by
the 1st Petitioner and the 7th Respondent.

Now I must consider the primary allegation raised by the Petitioners against the Respondents
on ‘Vendor Bias’. The Petitioners argue that the original technical specifications in the bid
document specifically targeted the product offered by the 7th Respondent and to the exclusion
of the other bidders. As mentioned above, the Petitioners contend that the technical
specifications in the bid document were identical to that of the product catalog of a specific
product known as ‘Vicon’ which was the product offered by the 7th Respondent. The
complaint of the Petitioners is that the TEC and the Ministerial Procurement Committee
(‘MPC’) have not considered the inbuilt bias specifically in the specifications and have
evaluated the bids regardless of the assurance given at the pre-bid meeting.

The contention of the 1st to 6th and 9th Respondents is that the TEC having considered the
suggestions made by the Petitioners decided to amend the technical specifications and also
obtained the advice of a technical expert in that regard. The amended technical specifications
in the bidding document are marked as ‘P9’. Thus, the said Respondents assert that the
Petitioners cannot approbate and reprobate on the issue of ‘Vendor Bias’ as the Petitioners
have gone ahead without any protest submitting the bid after the TEC accommodated the
request of the Petitioners to amend the specifications to a certain extent.

It appears that the nature of the bias complained of by the Petitioners deviates from the
traditional maxim Nemo judex in re sua. Christopher Forsyth in Administrative Law (by the late
Sir William Wade and Christopher Forsyth, 11th Edition Oxford p.390) under the subheading
‘Fanciful Allegations of Bias’ states;

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 “While the test of bias is unsatisfactory in application, clarity may be sought in the actual
decisions. It may be noted that, generally, a challenge based on a personal interest or connection
between the judge and the parties or witnesses is more likely to succeed than one based upon
membership of particular organizations or institutes that may be thought to have an interest in
the dispute. A line must be drawn between genuine and fanciful cases”

‘The question of bias is always the question of fact. The court has to be vigilant while applying
the principles of bias as it primarily depends on the facts of each case. The court should only
act on real bias and not merely on the likelihood of bias.’ [Vide - Cantonment Executive Officer
v. Vijay V. Wani (2008) 12 SCC 230, 234 (para 7)]

I take the view that when a party raises a ground of bias against the opposing party in a review
case, they should provide sufficient material to support their allegation. During a tender
process, the Procurement Entity should have the privilege to select the best item that they
need to fulfill their requirements. I cannot see any viable restriction for the Procurement Entity
of the instant Application to request specifications of a branded and reliable item if it is of the
view that such an item would be more suitable to their exact requirements through their past
experience. However, this proposition would be different if the 7th Respondent is the sole
agent of this particular product sold under the 'Vicon' brand name. Vicon Motion Systems
Limited (www.vicon.com) is a company based in the United Kingdom which manufactures
motion capture systems. It is noteworthy that neither the 1st Petitioner nor the 7th Respondent
manufacture motion capturing systems. The Annexure I of the bidding document (‘P4’)
declares the technical specification for motion camera systems. The 1st to 6th and 9th
Respondent's argument is that it does not refer to any brand name and the mentioned
specifications are rather generic in nature. Moreover, it is noted that the amendments
suggested to the bidding documents by the Petitioners were only in relation to the Motion
camera systems whereas tenders were called for (i)Motion camera systems, (ii) Inertial
systems, (iii) Force platform, (iv) EMG (Electromyography) and (v) Service provisions. It
appears that the Petitioners’ claim on ‘Vendor Bias’ is only in reference to one component
(i.e. Motion camera systems) of the above three items.

I am of the view that it is hard to accept the specific contention of the Petitioners on ‘Vendor
Bias’ solely on the ground that the specifications in respect of the Motion camera system

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declared in the bidding document resemble those of the same product marketed under ‘Vicon’
name. It would be too broad a proposition to extend the theory of bias to exclude the
specification of the bidding document only because such specifications are identical or
substantially similar to a product already available in the market. I am reluctant to apply the
concept of ‘Bias’ except where there is clear and unmistakable evidence of an individual
interest that unequivocally signifies bias. The presence of such an individual interest stands
out as a key factor in establishing bias. I cannot find any material establishing the fact that the
members of the TEC or the MPC have prejudged the successful bidder within their decision-
making process. Similarly, the Petitioners have failed to portray an adequate correlation
beyond doubt between the allegation of bias and the personal interest/involvement of the
members of the TEC and the MPC.

Be that as it may, I cannot possibly overlook the difference in the bid value between the 1 st
Petitioner and the 7th Respondent and it is noticeably a sum of Rs. 68,715,643.80. The fact
that public monies were used to pay the 7th Respondent cannot be ignored by the TEC, MPC,
or the Procurement Entity at any point. A tremendous responsibility will be cast upon the
members of the TEC and the MPC when concerns are raised on matters such as ‘Vendor
Bias’. If the specifications described in the bidding documents specifically target the product
offered by one particular bidder or such specifications are directly copied from a catalog of a
desired product, it can be assumed as serious malpractice in the procurement trade. Such bad
practice may be labeled as ‘Vendor Bias’ or by any other name, but the liability of the members
of the TEC or the MPC to evaluate carefully the bids considering respective allegations will
not be readily relinquished, especially in the presence of a significant disparity in the bid
values.

The members of the MPC ought to focus their scrutiny and evaluation to assess whether the
specifications in the bidding document are unusually not competitive to the majority of
bidders other than to one single bidder. The MPC is indeed guided by the specifications
stipulated in the bidding documents, but it needs to consider the material impact on the end
result concerning the product offered by the bidder who quoted a significantly lower price.
The MPC must evaluate the reasonability of paying an exorbitantly higher rate using public
funds to a bidder who has offered a product with specifications that are precisely the same as

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those that the authorities have seemingly taken straight from a catalog of a specific product.
Such exercise is essential to promote Good Governance. The product offered by the lowest
bidder needs to be evaluated even considering the fact whether accepting such goods will
compromise the exact requirements of the Procurement Entity rather than limiting the
evaluation to the specifications that are of a technical nature.

Nevertheless, by viewing the contents of the Bid Evaluation Report (‘R10’) I make an
observation that no evidence can be found to signify that the Members of the MPC had taken
any of the grounds mentioned above into consideration to substantially justify the significant
difference in the bid values or to dismiss the said allegations on the specifications. In terms of
the Procurement Manual 2006, fair, equal and maximum opportunity for interested parties to
participate in Procurement is one of the hallmarks of a sound procurement system. Even the
alleged complaints on the Issuing Register, "R7," where it appears that the 7th and 8th
Respondents were represented at the pre-bid meeting by the same individual have gone
unnoticed by the MPC. The Petitioners assert that the 1st to 6th Respondents have negligently
or willingly chosen to ignore possible collusion between the 7th and the 8th Respondents.

The fact that the specifications were directly copied from a catalog of a desired product
eradicates the opportunities for interested parties to participate in the procurement. In view
of the minutes of the pre-bid meeting (Vide- ‘R5’), the TC has accepted the need to modify
some details within the technical specification of the tender bid following the concerns raised
by the Petitioners. The MPC should not be a ‘rubber stamp’ of the Procurement Entity to
overlook the above crucial factors when evaluating the bids. Hence, the MPC or TEC should
have given adequate reasons considering the above aspects for clarity and transparency.

Notwithstanding the preceding, a reasonable question arises as to whether the strength of the
1st to 6th and 9th Respondents' legal arguments restrict this Court from proceeding with the
Petitioners' arguments against the MPC when reaching the final determination of this case. I
have already addressed the Petitioners’ arguments on the so-called ‘Vendor Bias’ and
manipulation of specifications stated in the bidding documents. Having considered those
questions, now the Court's task is to assess the other arguments raised in the Petition solely

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based on the uncontested amended version of the specifications which I am compelled to
acknowledge whilst conferring it a ‘purified status’.

According to the bid evaluation Report marked ‘R10’, the 1st Petitioner has not complied with
the technical specifications in respect of ‘Motion Camera Systems’ and service provisions,
whereas it has partially complied with the specifications in respect of Inertial measurement
system, EMG and Force platform. The 7th Respondent has complied with three specifications
while partially complying with the other two specifications. Concerning the technical
specifications of the Motion camera systems, the 7th Respondent has only substantially
complied with such specifications. The 1st to 6th and the 9th Respondents strenuously argue
that such failure of the 1st Petitioner are major deviations in terms of the Procurement
Guidelines. For instance, those Respondents submit that the 1st Petitioner has suggested
12MP for camera resolution as a minimum while the said Annexure I required 8MP and thus,
any bidder who submits specifications with a resolution less than 8MP will not be considered.
Referring to the Appeal submitted by the Petitioners to the 6th Respondents (‘P15’), it is
contended that the Petitioners have not challenged the expertise of the members of the TEC
as a ground for Appeal.

Now I must advert to the other allegations raised by the Petitioners, particularly mentioned
in paragraph 33 of the Petition of the Petitioners. The said paragraph reads:

“The Petitioners state that the letter dated 12th Oct. 2021 (P13) and the decision contained therein
is, in addition to the afore-stated reasons, bad in law for several reasons including;

a. That, in terms of the Procurement Guidelines, the decision to award the Tender must be
conveyed by the Secretary to the Line Ministry; i.e. in this instance, the 6 th Respondent.
However, the Letter dated 12th Oct. 2021 (P13) was signed by the 1st Respondent; thus
rendering such to be ultra vires and bad in law;
b. has failed to give reasons for the decisions as contained therein; namely failing to specify
which of the “two of the five major items have been considered major deviation”;
c. failing to identify as to which of the items have been considered as “...partially complied
technically…”;

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 d. due to (a) and (b) above, denying and/or precluding the Petitioners' ability to
meaningfully exercise their right of appeal granted in terms of the Procurement
Guidelines; and
e. requiring the appeal to be lodged to the “Chairman, Ministry Procurement Committee,
State Ministry of Rural and School Sport infrastructure improvement” (3rd Respondent)
who is one of the decision makers, thereby breaching rules of natural justice specifically
the principle of nemo judex in causa sua and the provisions of the Procurement
Guidelines pertaining to appeals.”

The 1st to 6th and 9th Respondents, based on the contention of the TEC in the said Report
marked ‘R10’ have summarized the reasons for rejections of the bids submitted by the 1st
Petitioner and the 8th Respondent as follows:

“a. The Petitioners had failed to attach the Letters of Authorization for several products

b. The Petitioners had failed to furnish details pertaining to Service provisions

c. There were significant number of unspecified or inappropriate specifications as well as variable

specifications

d. The Petitioners had quoted only for a single seat license [Visual 3D (C-Motion)] when in fact
Bid Specification required the bidder to quote for multiple users/seats

e. The Petitioners had only quoted for 3 years software support service for (Visual 3D(C-
Motion), when the minimum requirement was 5 years

f. In each of the five components the Petitioners had submitted inappropriate specifications
and/or variable specifications.”

During the detailed evaluation, the MPC has identified the following major deviations in
respect of the bid submitted by the 1st Petitioner:

“1. Specifications Annexure – I (Motion Camera Systems, Software and accessories) Non
complied

No direct manufacturers LOA available for: i) Inertial system (Noraxon), ii) EMG system
(Noraxon), iii) Force Plate system (AMTI), iv) Visual 3D (C-Motion). Qualisys identify AMTI

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 and Noraxon as partners in their LOA. The letter does not include any details regarding C-
Motion.

2. Specification Annexure – V (Service Provision) Non complied

No specification or detail pertaining to the service provision, in relation to annex 9.2: Team of
full-time and part-time experts for 2 years specializing in the field of biomechanics and
biomechanical engineering, including a local Lead Researcher and Foreign Consultant expert
network.”

It appears that the major deviations identified by the MPC show the lack of due diligence on
the part of the Petitioners. The fact that an Addendum is being published following the
Petitioners’ concerns and the 1st Petitioner submitting a bid without any further protest is also
a major drawback for the arguments raised on behalf of the Petitioners. Similarly, the
allegations leveled against the MPC by the Petitioners on copying the specifications from
another catalog are referred only to ‘Motion Camera System’. The Bidding Data Sheet in
Section II (ITB 35.5) of the Bidding document specifies that the bidder must consider all items
as a single unit and submit a price.

The 1st to 6th and the 9th Respondents strenuously argue that what is most pertinent and what
appears to be outrageous is that the Petitioners have waited until the contract with the 7th
Respondent was executed on 16.11.2021 to come before this Court. The said Respondents
relying on the dicta in the judgment of Walter Abeysundara and Another v. Secretary, Ministry
of Tourism and Others, CA/Writ/371/2020 decided on 22.09.2021 contend that the Petitioners
have failed to demonstrate due diligence and have slept over their rights. By closely observing
the chronological sequence of events such as the date of the pre-bid meeting; the date the
Petitioners made their suggestions; the date of the issuance of the Addendum, I am convinced
that the Petitioners lacked promptitude.

Based on all the above circumstances I take the view that the major and minor deviations
pointed out by the 1st to 6th and 9th Respondents in respect of the bid submitted by the 1st
Petitioner outweigh the claims made by the Petitioners against the MPC, especially the one
in paragraph 33 of the Petition of the Petitioners. In addition to that, the lack of promptitude
in invoking writ jurisdiction disentitle the Petitioners in seeking reliefs as prayed for in the

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prayer of the Petition. It is true that the Petitioners were able to raise the pivotal arguments
on different perspectives such as ‘Vendor Bias’, ‘Inbuilt Bias’ in the specifications as well as
the failure of the MPC to consider the significant difference in the bid values. Irrespective of
the foregoing, I am afraid that the Petitioner is not entitled to be benefited by any of those
arguments since the Petitioners have failed to adequately establish that they have followed
the due process diligently and establish that the product they have offered is more responsive
than the product which is offered by the 7th Respondent. For the reasons set forth above, I
take the view that no substantial prejudice has been caused to the 1st Petitioner due to the
conduct of the members of the MPC or the TEC in not giving clear and transparent reasons
as observed by me earlier in this judgement.

Furthermore, when arriving at the above conclusions I was captivated by the Judgement in
Tata Cellular v. Union of India (1994) 6 SCC 651, upon which the 1st to 6th and the 9th
Respondents have placed reliance. It is a case where a three-judge bench of the Supreme
Court of India extensively considered the English decisions as well as the previous decisions
of the Supreme Court of India in the matters of judicial review and scope relating to
Government contracts and tenders and deduced the legal principles as under:

“(1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision
was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the
administrative decision is permitted it will be substituting its own decision, without the necessary
expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation
to tender is in the realm of contract.

Normally speaking, the decision to accept the tender or award the contract is reached by process
of negotiations through several tiers. More often than not, such decisions are made qualitatively
by experts.

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 (5) The Government must have freedom of contract. In other words, a fair play in the joints is a
necessary concomitant for an administrative body functioning in an administrative sphere or
quasi-administrative sphere. However, the decision must not only be tested by the application of
Wednesbury principle of reasonableness (including its other facts pointed out above) but must be
free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose a heavy administrative burden on the administration and
lead to increased and unbudgeted expenditure.”

Considering all the above circumstances, I hold that the Petitioners are not entitled to any of
the reliefs as prayed for in the prayer of the Petition. In light of the reasons given above, I take
the view that other than the objections on futility as discussed above, this Court is not required
to analyze in detail the other preliminary objections raised on behalf of the 7th Respondent.
Hence, I proceed to dismiss the instant Application.

Application is dismissed.

Judge of the Court of Appeal

Dhammika Ganepola J.

I agree.

Judge of the Court of Appeal

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