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M/S. M.E. Infra-Projects(Pvt.) Ltd. & Another v/s Mumbai Municipal Corporation & Others


    Decided On, 05 May 2010

    At, High Court of Judicature at Bombay


    For the Petitioners: Ms. Pooja Patil i/by M/s. Thakore Jariwala & Associates, Advocates. For the Respondents: Ms. G.S. Joglekar for BMC.

Judgment Text

J.N. Patel, Acting C. J.

1. Rule, returnable forthwith.

2. By consent of the learned counsel for the parties, rule is heard forthwith.

3. The petitioner-company has challenged the clause 3.2.3 (vi) of the tender terms and conditions of the tender issued by the respondents inviting bids for "AC-77 Civil Works Contract (C.W.C.) for reinstatement of trenches taken by various utilities, repairs to potholes, spot repairs for the period upto 31st March, 2010 in the city of Mumbai.

4. It is the case of the petitioners that in response to the tender notice bearing No.ChE/633/SR/Rds dated 2nd February, 2010, the petitioners submitted their bids. On 19.3.2010 when the final list of tenderers was displayed at the office of respondent No.4, name of the petitioners did not find place in the said list in spite of full compliance by the petitioners of all the terms and conditions of the said bid. It is the case of the petitioners that one of the important commitments of the bid document was in respect of the equipments mentioned in clause 3.2.3 (vi) A,B and C and as per the proformas annexed to the tender/bid document viz. V A, V B and V C respectively which were to be submitted alongwith the contents of packet B. The petitioners were to provide information about the ownership, assured access (through hire, lease, purchase agreement or other commercial means) to key items of the equipments (Proforma V A, V Bombay & V C (Original). Proforma V A provided that the tenderer should own the equipment mentioned in Condition No.3.2.3 (vi) which includes Static Roller of 10 T capacity. It is the case of the petitioners that by way of proof of ownership, the petitioners had submitted repair bills as well as the balance sheets for the year 2000-2001 in respect of the said equipments and that the Static Roller owned by the petitioners is already deployed for the project of the respondents and used at site at H/East Ward Trench filling site and that though the petitioners had applied for site inspection of the said equipments and had produced the repair invoice of the equipment, the respondents had treated the tender of the petitioners as non-responsive. In reply, the respondent-Corporation has stated that the petitioners have not produced a single document showing the ownership of the petitioners over the required equipments as per the tender notice and hence, they were rightly held as non-responsive and the other tenderers have clearly produced the documents of ownership over the required equipments, were only selected for the said purpose. It is further stated that out of 24 wards of MCGM, 23 tenderers are held as responsive. So far as one ward is concerned, the technical committee will take the decision whether to retender the entire process and/or to give the charge to one of the responsive tenderers of the remaining wards.

5. The learned counsel for the petitioners submitted that the documents submitted by the petitioners as per the requirement sufficiently goes to establish the ownership of the petitioners over the said machinery/equipments but the respondents have lost site of the fact that the tender bid merely required proof of equipments without specifying the nature and/or extent of proof as the petitioners have submitted all the documentary evidence available with them and also furnished necessary information regarding Static Roller which is in fact being used at the H/East Trench in a project of the respondents themselves. The respondents having ignored the proof as submitted by the petitioners have acted in an arbitrary manner and rejected the bid of the petitioners as non-responsive. According to the petitioners, the insistence on the part of the respondents for ownership in respect of the equipments forming part of part A of subsection 3.2.3 (vi) is rather arbitrary, unreasonable and clearly smacks of malafide on the part of the respondents. It is submitted that such a requirement will only debar the competent contractors from participating the tender bid and, therefore, the said clause is to be declared as inoperative being illegal, arbitrary, discriminatory and unconstitutional. Therefore, this court should quash and set aside the opening of the other bid packages without inclusion and/or consideration of the bid package of the petitioners.

6. The learned counsel for the respondent-Corporation, on the other hand, submitted that the petitioners having failed to comply with the requirements of the tender condition 3.24(g) particularly, as per the details required under Proforma VA. It is clearly stated that as per the tender condition 3.2.3(vi), the petitioners were held ineligible and therefore, the respondent-Corporation was justified in treating the tender of the petitioners as non-responsive and thus, the petitioners are disqualified from participating in the bid.

7. It is not disputed that the requirement of clause 3.24 of the tender which provides for the contents of Packet `B' specifically requires in sub-clause (g) information about the ownership, or assured access (through hire, lease, purchase agreement or other commercial means) to key items of equipments (Proforma V A, V B & V C)(Original) and clause 3.29 provides for proforma and the required documents. Admittedly, the petitioners have failed to comply with the requirements particularly in respect of the equipments as specified in Proforma V A. It is well settled that the terms and conditions specified in the tender have to be substantially complied with and cannot be substituted by interpreting it in a different manner by the contractors who are participating in the tender and further, the court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India cannot alter the same unless the same is found to be arbitrary and unreasonable. In the present case, all other tenderers have complied with the requirements of clause 3.24(g). The petitioners, on the other hand, want the court to declare that the said condition is illegal, arbitrary and discriminatory and, thus, unconstitutional by trying to interpret in the manner not contemplated in the tender notice. The petitioners were well aware of the requirements and claimed that they have been able to meet the requirements by placing on record

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the balance sheet as well as the bill of repairs for the said machinery and equipment particularly Static Roller of 10T capacity. The respondents were justified in ignoring the documents particularly the receipts of repairs as the do not clarify that the petitioners are owners of the equipment nor the said receipts specify description of the roller so that it meets the specific requirements of Proforma V A which provides for equipment and the balance sheet cannot be a substitute for documents of ownership. 8. Therefore, we do not find that the petitioners have made out any case to call for interference. Rule is discharged. The petition is, therefore, dismissed with no order a to costs.