Oral Judgment: (A.S. Chandurkar, J.)
1. Since challenge has been raised to the acceptance of the tender bid of the respondent no.2 and as the tender work pertains to construction of a minor bridge, at the request of the learned counsel for the parties we have heard the learned counsel for the parties at length.
2. The facts giving rise to the present proceedings are that on 24.10.2018 Municipal Council, Mohpa - Respondent No.1 published a tender notice inviting offers for the work of construction of minor bridge across Madhuganga River. The petitioner no.1 along with the respondent nos. 2 to 4 responded to the tender notice. On 04.12.2018 after the technical bids were opened and the envelopes of all bidders were found to be valid, the financial bids were opened. The bid of the respondent no.2 was found to be the lowest. The Municipal Council accordingly proposed to issue a work order to the respondent no.2. The petitioner being aggrieved by the opening of the financial bid of the respondent no.2 on the ground that the respondent no.2 was not technically qualified has challenged the said process. The petitioners seek disqualification of the respondent no.2 from participating in the financial bid process and pray that being the lowest bidder, the work order be issued to the petitioner no.1.
3. Shri M.P.Khajanchi, learned counsel for the petitioners submitted that the technical bid of the respondent no.2 as contained in envelope no.1 did not satisfy the essential conditions prescribed in the tender notice. Referring to Clauses 1.4.7, 1.4.9 and 1.4.10 it was his submission that the essential conditions prescribed by these Clauses had not been satisfied by the respondent no.2. On that count, the financial bid of the respondent no.2 was not liable to be opened. As per Clause 1.4.7 it was necessary for a bidder to furnish scanned copy of details of work of similar type and magnitude with supporting certificates. It was submitted that as per said Clause a bidder was required to give details of work undertaken similar to the one for which the tender was issued. As the tender was issued for construction of a minor bridge, it was incumbent upon a bidder to have carried out work of similar type and magnitude. However, from the details of work undertaken by the respondent no.2, it could be seen that he had not carried out any work of similar nature. The documents submitted by the respondent no.2 indicated construction of compound walls, road widening, construction of dwelling houses and halls to have been undertaken. Work similar to construction of a minor bridge had not been carried out by the respondent no.2 and hence the bid of the respondent no.2 was liable to be treated as non-responsive. As per Clause 1.4.9 a bidder was required to give an affidavit as regards correctness and truthfulness of the documents furnished. The affidavit was to be given in the prescribed proforma making reference to the Chief Officer, Municipal Council, Mohpa. However, the respondent no.2 furnished the affidavit referring to the Chief Officer/Administrator, Municipal Council, Wanadongari. The affidavit therefore was not in the required format and not satisfying the tender condition. Referring to Clause 1.4.10 it was submitted that the scanned copy of the professional tax registration and clearance certificate was necessary. The respondent no.2 however furnished the photocopy of those documents and not scanned copy. The petitioner raised aforesaid objections on 03.11.2018, 05.11.2018 and 29.11.2018 but no cognizance of the same was taken. It was further submitted that after the technical bids were opened, the financial bids were to be opened two days therefrom. However the technical bids as well as the financial bids were opened simultaneously in breach of the prescribed condition. He further submitted that though the technical evaluation summary details indicated presence of the Chief Officer, the said Officer was not present when the bids were opened. The process of technical evaluation was therefore undertaken in the absence of the Chief Officer. He referred to reply filed on behalf of the respondent no.2 in that regard. It was thus submitted that after declaring the bid of the respondent no. 2 as non-responsive, the bid of the petitioner no.1 being lowest was liable to be accepted. He referred to the averments in paragraph 7 of the writ petition to indicate that the petitioners were willing to negotiate its financial bid to match the figures quoted by the respondent no.2 in its financial bid. In support of his submissions, the learned counsel placed reliance on the decisions in M/s.Jay Constructions Vs. The State of Maharashtra & Ors, 2019 (2) ALL MR 50, Supreme-Mahavir (JV) and others Vs. Municipal Corporation of Greater Mumbai and others, 2013(4) Mh.L.J. 836, Raunaq International Ltd. Vs. I.V.R. Construction Ltd and others, (1999) 1 SCC 492, Ramana Dayaram Shetty Vs. International Airport Authority of India and others (1979) 3 SCC 489. It was thus submitted that the petitioners were entitled to the relief as prayed for.
4. Shri U.K.Bisen, learned counsel for the respondent nos.1 and 5 submitted that the technical bid of the respondent no.2 was rightly found to be valid and thus its financial bid was also opened. According to him, work of similar nature and magnitude indicated that the bidder should have necessary experience of civil work and should be registered with the Public Works Department. It was not necessary that the bidder should have specific experience or should have carried out work of construction of a bridge. It was then submitted that the entire process had been carried out in a transparent manner and the lowest bid of the respondent no.2 had been rightly accepted. Though it is the case of the petitioners that they had raised objections on 03.11.2018, there was no reason for the petitioners to have waited for a period of one month as the writ petition was filed only on 06.12.2018. He referred to various conditions of the tender notice and submitted that all the bids that were found to be valid had been taken into consideration. In absence of any malafides on the part of the Municipal Council, there was no reason to interfere with its action.
5. Shri Abhishekh Shukla, learned counsel for the respondent no.2 supported the stand of the Municipal Council and emphasized that requirement as per Clause 1.4.7 was “similar work” and not “same work”. Since the respondent no.2 had done various works of construction of civil nature, those works could be treated as similar works and of the same magnitude. If the expression “similar work” was treated as same work then no new bidder would be able to participate in the tender process if he had not undertaken construction of any bridge. Experience in the construction work of civil nature was sufficient. He further submitted that as regards the requirement of Clause 1.4.9 the same was merely a technical error of minor nature and the same would not affect the technical bid of the respondent no.2. As the Office of the Chief Officer, Mohpa was vacant and the Chief Officer of Municipal Council, Wanadongari was Incharge, the affidavit was prepared in that manner. Similarly submission of photocopies of the professional tax registration and clearance instead of scanned copies was not a defect of major nature so as to disqualify the respondent no.2. The conditions relied upon by the petitioners to seek rejection of the technical bid of the respondent no.2 were not essential conditions and therefore there was no substance in the challenge as raised. Moreover, in the matter of acceptance of tenders the Courts would be slow to interfere in the absence of any allegations of malafide or the decision being perverse. In that regard the learned counsel relied upon the decisions in JSW Infrastructure Limited and another Vs. Kakinada Seaports Limited and others, (2017) 4 SCC 170 , Municipal Corporation, Ujjain and another Vs. BVG India Limited and others (2018) 5 SCC 462, Tejas Constructions and Infrastructure Private Limited Vs. Municipal Council, Sendhwa and another (2012) 6 SCC 464, Jagdish Mandal Vs. State of Orissa and others (2007) 14 SCC 517, Kanhaiya Lal Agrawal Vs. Union of India and others (2002) 6 SCC 315 and G.J.Fernandez Vs. State of Karnataka and others (1990) 2 SCC 488 to submit that the writ petition was liable to be dismissed.
6. We have heard the learned counsel for the parties and we have perused the documentary material placed on record. The acceptance of envelope no.1 containing the technical bid of the respondent no.2 has been objected to by the petitioners principally on the ground that material requirements prescribed in the tender notice based on it had not been satisfied by the respondent no.2. Before proceeding to examine the challenges as raised, it would be necessary to consider the scope for consideration of such challenges and the parameters on which the Court can interfere in such matters. In Supreme-Mahavir (JV) and others (supra) the tender floated was for improvement of roads in flexible pavements and also for improvement of various roads in rigid pavements. The bidders were required to furnish documents as regards experience in carrying out the work in terms of costs and quantity of asphalt road work to the extent of 30% of the costs. This information was held to be an essential condition as the object of that requirement was that each bidder was required to possess experience of the requisite extent of work of that nature. It was held that contractual terms which define conditions of eligibility ought to be scrupulously enforced. Relaxation of a contractual term with regard to a particular bidder could render the entire process arbitrary.
In Montecarlo Limited Vs. National Thermal Power Corporation Limited (2016) 15 SCC 272 while considering the scope for interference in matters relating to tenders, it was observed that where a decision is found to have been taken in consonance with the language of the tender document or the decision sub-serves the purpose for which tender is floated, the Court should follow the principle of restraint. In Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and another (2016) 16 SCC 818, it has been held that if the decision making process was irrational or perverse interference would be permissible. In Raunaq International Limited (supra), the Hon’ble Supreme Court has referred to various considerations to be of paramount importance and one of them is past experience of the tenderer and whether he has successfully completed similar work earlier.
In JSW Infrastructure Limited and another (supra), it has been held that the writ Court cannot review the decision as made but can only consider the decision making process. The Courts should keep in mind that they do not have the necessary expertise with regard to technical decisions and it is only if the action suffers from malafides or arbitrariness or with an intention to favour a particular bidder or perversity that the Constitutional Court can interfere with the tender process. In Municipal Corporation, Ujjain and another (supra), it has been observed that the High Court can not act as an appellate Court for reviewing the evaluation of the tender. Similar observations can be found in Jagdish Mandal (supra). In Kanhaiya Lal Agrawal (supra) it has been held that if an essential condition of the tender is not complied with, it is open for the person inviting the tender to reject the same. Whether a condition is essential or collateral can be ascertained with reference to the consequence of non-compliance thereto.
Recently, the Hon’ble Supreme Court in The Bharat Coking Coal Limited and others Vs. AMR Dev Prabha and others (Civil Appeal No. 2197 of 2020) decided on 18.03.2020 has held that in addition to the aspects of arbitrariness, illegality or discrimination under Article 14 of the Constitution of India, the aspect of public interest involved should also be indicated while invoking writ remedy.
7. Keeping the aforesaid legal principles in mind it would first be necessary to refer to the relevant tender conditions which according to the petitioners have not been satisfied by the respondent no.2. According to the petitioners, Clause No.1.4.7 requires a bidder to furnish details of work of similar type and magnitude. Said Clause reads as under :
1.4.7 “Scanned copy of Details of work of similar type and magnitude with supporting certificates”
In this regard, it is to be noted that the tender in question relates to “construction of minor bridge across the Madhuganga River”. According to the petitioners under Clause 1.4.7 the expression “work of similar type and magnitude” would indicate that a bidder was expected to have carried out work similar to the work that was proposed to be awarded under the tender. It is emphasized that the respondent no.2 did not furnish any documentary material to indicate details of any “work of similar nature and magnitude”. In this context it is seen from the statement of work done and work in progress that has been submitted by the respondent no.2 that there is a reference to the work of construction of compound wall, lavatory blocks, road widening, construction of urinals and hall. It is thus contended that in absence of any details of the respondent no.2 having carried out work of similar type and magnitude, the technical bid of the respondent no.2 ought to have been treated as non-responsive.
8. It is seen from the tender notice that the respondent no.2 intended to carry out the work of construction of a minor bridge across a river within its jurisdiction. The requirement therefore prescribed by Clause 1.4.7 of furnishing details of work of similar type and magnitude has to be considered in the aforesaid backdrop. It is a matter of common knowledge that the technical skill and expertise required in the construction of a bridge is different from that which is required for carrying out work of construction of a compound wall, hall, lavatory blocks and cement-concrete road. According to the respondent no.2 since details with regard to civil work undertaken by it had been furnished, there was sufficient compliance with the requirement as prescribed by Clause 1.4.7. Considering the involvement of larger public interest in view of the fact that the bridge over the river was to be used by general public in large numbers whose safety was paramount, the respondent no.1 was justified in seeking details of work of similar type and magnitude carried out by the bidder. It is undisputed that the respondent no.2 did not furnish any details of work of any bridge being undertaken by it. We find that in the light of nature of the work that was proposed to be undertaken by the issuance of the tender, a bidder was required to have carried out work of similar type and magnitude in the context of construction of a bridge. The requirement of furnishing such details was an essential condition of the tender. Applying the principle as laid down in Mantecarlo Limited (supra) it is found that the decision taken by the respondent no.1 of accepting the technical bid of the respondent no.2 does not subserve the purpose for which the tender was floated. In other words, the tender being one for construction of a bridge across the river and the tender document prescribing furnishing of details of similar work and magnitude by a bidder, in the absence of any such work being carried out by the respondent no.2, the decision of the respondent no.1 of accepting the technical bid of the respondent no.2 does not sub-serve the purpose for which the tender was floated. Use of the words “similar type and magnitude” have to be given their due weightage and when those words are considered in the light of work to be allotted under the tender, a bidder was required to furnish details of work of such construction for which he had entered the fray. It is found that in the light of the nature of work under the tender, the requirement of furnishing details of work of similar type and magnitude was an essential condition of the tender. Hence on failure to give such details, the bid of the respondent no.2 ought to have been treated as non-responsive. Ignoring this essential condition has resulted in vitiating the decision making process on the ground of irrationality.
9. Another Clause on which the petitioners seek to rely is Clause No. 1.4.9 which requires furnishing of an affidavit on a stamp paper in the prescribed proforma. Clause 1.4.9 reads as under :
“Scanned copy of original affidavit regarding completeness, correctness and truthfulness of documents submitted on Rs.100/- Stamp paper as per prescribed proforma given on page No. 15 sworn before Executive Magistrate/Notary.”
The affidavit furnished by the respondent no.2 records the following words “Chief Officer/Administrator, Municipal Council, Wanadongri, District Nagpur” instead of words “Chief Officer, Municipal Council, Mohpa, District Nagpur”. It is however found that the objection in this regard as raised by the petitioners does not carry much weight as we find that there is substantial compliance in that regard by the respondent no.2 while executing the required affidavit. Merely because the Chief Officer of the Municipal Council, Wanadongri, was in-charge of the Office of the Chief Officer, Municipal Council, Mohpa, such affidavit was prepared by the respondent no.2. We do not find that this objection raised by the petitioners warrants acceptance.
10. According to the petitioners, the respondent no.2 by not submitting scanned copy of the professional tax regist
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ration and clearance certificate as prescribed by Clause 1.4.10 has not satisfied relevant condition of the tender notice. The respondent no.2 submitted a photocopy of that certificate instead of a scanned copy. This objection is noted only to be rejected. There is no merit in this objection raised by the petitioners. 11. It is thus found that Clause 1.4.7 requiring furnishing of details of “work of similar type and magnitude” was an essential condition of the tender and in absence of the respondent no.2 furnishing any details whatsoever in that regard, its financial bid was not liable to be opened. The eligibility of the respondent no.2 was thus affected. On that count, we find that a case for interference has been made by the petitioners. Hence for the aforesaid reasons, we pass the following order : It is held that on account of failure on the part of the respondent no.2 in not complying with condition No.1.4.7 its bid was liable to be treated as nonresponsive. Consequently, the financial bid of respondent no.2 was not liable to be opened. Though the petitioner no.1 has expressed willingness to negotiate with the respondent no.1 and reduce its bid to the bid amount as quoted by the respondent no.2, the matter is left at the discretion of the respondent no.1. The respondent no.1 is free to proceed further in accordance with the terms of the tender notice by treating the bid of the respondent no.2 non-responsive. Rule is made absolute in aforesaid terms leaving the parties to bear their own costs. At this stage, learned counsel for respondent no. 2 prayed that the interim order operating in the writ petition be continued for a period of eight weeks from today. This request is opposed by the learned counsel for the petitioners. In the facts of the case, the effect of this judgment is stayed for a period of eight weeks from today. The said direction shall cease to operate automatically thereafter.