w w w . L a w y e r S e r v i c e s . i n



Nish Techno Projects Private Limited v/s Surat Municipal Corporation


Company & Directors' Information:- C AND C PROJECTS LIMITED [Active] CIN = U74999HR2007PLC036644

Company & Directors' Information:- Y K M PROJECTS PRIVATE LIMITED [Active] CIN = U40109TG2008PTC057263

Company & Directors' Information:- T G R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200KA2012PTC062702

Company & Directors' Information:- S G PROJECTS LIMITED [Active] CIN = U65999WB1990PLC049684

Company & Directors' Information:- B C C PROJECTS PVT LTD [Active] CIN = U74899DL2001PTC112102

Company & Directors' Information:- J K S PROJECTS LIMITED [Active] CIN = U45400WB2011PLC157565

Company & Directors' Information:- D M P PROJECTS PVT LTD [Active] CIN = U27109WB2006PTC107513

Company & Directors' Information:- T & T PROJECTS LIMITED [Active] CIN = U45201AS2008PLC008641

Company & Directors' Information:- W AND W PROJECTS PRIVATE LIMITED [Active] CIN = U65910DL1989PTC036754

Company & Directors' Information:- E M C PROJECTS PVT LTD [Active] CIN = U29248WB1964PTC026261

Company & Directors' Information:- H AND V PROJECTS PRIVATE LIMITED [Active] CIN = U72400DL2011PTC220047

Company & Directors' Information:- M A PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2005PTC135093

Company & Directors' Information:- S. V. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70100AP1998PTC029024

Company & Directors' Information:- M V PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45202KA2008PTC045272

Company & Directors' Information:- S V S PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200AP2015PTC096787

Company & Directors' Information:- NISH TECHNO PROJECTS PRIVATE LIMITED [Active] CIN = U74140GJ2002PTC040446

Company & Directors' Information:- A T E PROJECTS PRIVATE LIMITED [Active] CIN = U74999DL1999PTC102246

Company & Directors' Information:- U W T PROJECTS LIMITED [Active] CIN = U45200AP2004PLC043198

Company & Directors' Information:- J J PROJECTS PVT LTD [Active] CIN = U24231WB1986PTC040246

Company & Directors' Information:- Z H PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400WB2012PTC184307

Company & Directors' Information:- K & J PROJECTS PRIVATE LIMITED [Active] CIN = U45203MH2004PTC150165

Company & Directors' Information:- T & I PROJECTS LTD [Active] CIN = L29130WB1984PLC038232

Company & Directors' Information:- B 2 R PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2013PTC189971

Company & Directors' Information:- C M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC130580

Company & Directors' Information:- N G PROJECTS LIMITED [Active] CIN = U45201GJ2003PLC042152

Company & Directors' Information:- E AND C PROJECTS PRIVATE LIMITED [Active] CIN = U29150DL2002PTC115297

Company & Directors' Information:- B. D. R. PROJECTS PRIVATE LIMITED [Active] CIN = U45202TG1998PTC028780

Company & Directors' Information:- V AND S PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL1996PTC079487

Company & Directors' Information:- L S R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U07010KA2005PTC036041

Company & Directors' Information:- V R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400AP2007PTC054901

Company & Directors' Information:- D C R PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2007PTC056307

Company & Directors' Information:- R. R. PROJECTS PVT LTD [Active] CIN = U45200TG1982PTC003711

Company & Directors' Information:- S H PROJECTS PRIVATE LIMITED [Active] CIN = U74996DL2006PTC149971

Company & Directors' Information:- S R PROJECTS INDIA PVT LTD [Active] CIN = U45207WB1981PTC033286

Company & Directors' Information:- L E PROJECTS PRIVATE LIMITED [Active] CIN = U45303WB2005PTC102555

Company & Directors' Information:- M. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC131902

Company & Directors' Information:- J V PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069037

Company & Directors' Information:- B N PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2009PTC058067

Company & Directors' Information:- P M TECHNO PRIVATE LIMITED [Active] CIN = U29298KA2011PTC061171

Company & Directors' Information:- J P PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2011PTC165990

Company & Directors' Information:- R K PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC043660

Company & Directors' Information:- A B PROJECTS PRIVATE LIMITED [Active] CIN = U45200MH2004PTC149404

Company & Directors' Information:- A K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG1996PTC023179

Company & Directors' Information:- S N M PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2010PTC040243

Company & Directors' Information:- J AND H PROJECTS PRIVATE LIMITED [Active] CIN = U45200GJ2013PTC074010

Company & Directors' Information:- N S PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2007PTC117882

Company & Directors' Information:- H S PROJECTS PRIVATE LIMITED [Active] CIN = U45208DL2006PTC153706

Company & Directors' Information:- N M PROJECTS PRIVATE LIMITED [Active] CIN = U29219DL2009PTC186728

Company & Directors' Information:- K. V. PROJECTS PRIVATE LIMITED [Active] CIN = U70102WB2012PTC188439

Company & Directors' Information:- A R K TECHNO PRIVATE LIMITED. [Active] CIN = U34300PB2008PTC032368

Company & Directors' Information:- K R S PROJECTS PRIVATE LIMITED [Active] CIN = U70102AP2012PTC082232

Company & Directors' Information:- K K TECHNO PRIVATE LIMITED [Active] CIN = U28939DL2008PTC177636

Company & Directors' Information:- B S C PROJECTS PRIVATE LIMITED [Active] CIN = U45200DL2011PTC227768

Company & Directors' Information:- J K PROJECTS PRIVATE LIMITED [Active] CIN = U45203GJ2001PTC039576

Company & Directors' Information:- F C C PROJECTS PRIVATE LIMITED [Active] CIN = U29248UP1982PTC005786

Company & Directors' Information:- S N PROJECTS LIMITED [Active] CIN = U85110KA1996PLC021040

Company & Directors' Information:- B. D. PROJECTS PRIVATE LIMITED [Amalgamated] CIN = U45400WB2010PTC147620

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U29100DL2010PTC209136

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2010PTC209136

Company & Directors' Information:- C B PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB1997PTC085237

Company & Directors' Information:- G G PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL1998PTC091501

Company & Directors' Information:- V M G PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45400WB2011PTC164117

Company & Directors' Information:- M. L. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151513

Company & Directors' Information:- R N D PROJECTS PRIVATE LIMITED [Active] CIN = U70102DL1996PTC080051

Company & Directors' Information:- M. K. N. PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2009PTC196755

Company & Directors' Information:- M B R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45300KA2009PTC049005

Company & Directors' Information:- SURAT PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2005PTC046381

Company & Directors' Information:- G S P PROJECTS PRIVATE LIMITED [Active] CIN = U45201WB1992PTC057116

Company & Directors' Information:- K P S PROJECTS PRIVATE LIMITED [Active] CIN = U70102TG2005PTC046280

Company & Directors' Information:- E AND V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102TG2004PTC042622

Company & Directors' Information:- T M R PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2010ULT211007

Company & Directors' Information:- P A PROJECTS PRIVATE LIMITED [Active] CIN = U45208WB1997PTC083907

Company & Directors' Information:- P L TECHNO PRIVATE LIMITED [Active] CIN = U74900DL2008PTC180740

Company & Directors' Information:- N K D PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2008PTC128819

Company & Directors' Information:- A I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45203WB2000PTC091229

Company & Directors' Information:- P N PROJECTS PRIVATE LIMITED [Active] CIN = U45202DL2016PTC289494

Company & Directors' Information:- V AND M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2005PTC139731

Company & Directors' Information:- K K PROJECTS PVT LTD [Strike Off] CIN = U70200WB1995PTC073058

Company & Directors' Information:- S L PROJECTS PRIVATE LIMITED [Active] CIN = U45400AN2009PTC000109

Company & Directors' Information:- TECHNO PROJECTS PVT LTD [Active] CIN = U74210WB1967PTC027071

Company & Directors' Information:- PROJECTS PVT LTD [Strike Off] CIN = U45201WB1951PTC019759

Company & Directors' Information:- V K M PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2011PTC045725

Company & Directors' Information:- K P PROJECTS PVT LTD [Active] CIN = U70101WB1996PTC077397

Company & Directors' Information:- C R PROJECTS PRIVATE LIMITED [Active] CIN = U45400PB2009PTC032572

Company & Directors' Information:- N D B K PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U27100PB2012PTC036987

Company & Directors' Information:- N P R PROJECTS INDIA PRIVATE LIMITED [Strike Off] CIN = U45400TN2012PTC086360

Company & Directors' Information:- G P N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U18101TZ2006PTC012749

Company & Directors' Information:- V K R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC046370

Company & Directors' Information:- I N C PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2005PTC101620

Company & Directors' Information:- J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC136510

Company & Directors' Information:- D J PROJECTS PRIVATE LIMITED [Active] CIN = U15201DL2005PTC134979

Company & Directors' Information:- M S C K PROJECTS PRIVATE LIMITED [Converted to LLP] CIN = U70101DL2005PTC135407

Company & Directors' Information:- T AND M PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201KA2008PTC045199

Company & Directors' Information:- A C G PROJECTS PRIVATE LIMITED [Active] CIN = U45201UP1999PTC024162

Company & Directors' Information:- N E PROJECTS LTD [Strike Off] CIN = U16009AS1999PLC005873

Company & Directors' Information:- R M TECHNO PRIVATE LIMITED [Active] CIN = U72200DL2001PTC112397

Company & Directors' Information:- D R PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109612

Company & Directors' Information:- I J PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102KA2009PTC049320

Company & Directors' Information:- G C N PROJECTS PRIVATE LIMITED [Active] CIN = U45200KA2011PTC061371

Company & Directors' Information:- L N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2004PTC043064

Company & Directors' Information:- H B PROJECTS PVT LTD [Amalgamated] CIN = U45201WB1993PTC058846

Company & Directors' Information:- I. T. G PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC063342

Company & Directors' Information:- P. S. PROJECTS PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U70109WB2011PTC170655

Company & Directors' Information:- R B TECHNO PVT LTD [Strike Off] CIN = U32101WB1988PTC043936

Company & Directors' Information:- A R N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45202MH2010PTC199122

Company & Directors' Information:- S P PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45400DL2010PTC203910

Company & Directors' Information:- J R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109HR2012PTC045119

Company & Directors' Information:- C N R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45201KA2007PTC041355

Company & Directors' Information:- TECHNO PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74210KA1979PTC003544

Company & Directors' Information:- A J PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45201MH2006PTC164622

Company & Directors' Information:- J M PROJECTS PRIVATE LIMITED [Active] CIN = U45200MP2007PTC019336

Company & Directors' Information:- L S S PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2013PTC059508

Company & Directors' Information:- A TO Z PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70101DL1995PTC069527

Company & Directors' Information:- G I T T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG2006PTC051193

Company & Directors' Information:- Z & I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45309TN2007PTC064972

Company & Directors' Information:- B. G. PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2012PTC231270

Company & Directors' Information:- P S R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45400TG2015PTC101191

Company & Directors' Information:- E & E PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2015PTC075033

Company & Directors' Information:- B B R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045165

Company & Directors' Information:- M V R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045166

Company & Directors' Information:- L V S PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200TG2010PTC068286

Company & Directors' Information:- R N V PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2011PTC044240

Company & Directors' Information:- K L PROJECTS PRIVATE LIMITED [Active] CIN = U27104DL2003PTC119655

Company & Directors' Information:- K S M PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2009PTC194824

Company & Directors' Information:- 3 G PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC276736

Company & Directors' Information:- I S R PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2005PTC138210

Company & Directors' Information:- L V PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2014PTC272838

Company & Directors' Information:- M K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2002PTC117787

Company & Directors' Information:- B V M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC131352

Company & Directors' Information:- K. J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL2006PTC152898

Company & Directors' Information:- V N R PROJECTS PRIVATE LIMITED. [Active] CIN = U45400AP2008PTC060896

Company & Directors' Information:- C R R PROJECTS PRIVATE LIMITED [Active] CIN = U45400AP2015PTC097217

Company & Directors' Information:- H V PROJECTS PVT LTD [Active] CIN = U45202HR1997PTC033617

Company & Directors' Information:- V & V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109KA2005PTC037578

Company & Directors' Information:- C AND T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74140GJ2009PTC057480

Company & Directors' Information:- A AND B PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2007PTC051077

Company & Directors' Information:- B. P. S. R. PROJECTS PRIVATE LIMITED [Active] CIN = U70109RJ2018PTC063238

Company & Directors' Information:- A. R. PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40200DL2007PTC161559

Company & Directors' Information:- C C TECHNO PVT LTD [Strike Off] CIN = U74210WB2000PTC039643

    Special Civil Application No. 14107 of 2019

    Decided On, 04 February 2020

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MS. JUSTICE HARSHA DEVANI & THE HONOURABLE MS. JUSTICE SANGEETA K VISHEN

    For the Appearing Parties: R.S. Sanjanwala, Prashant Desai, Kaushal D. Pandya, S.N. Soparkar, Mrugen K. Purohit, Advocates.



Judgment Text


Harsha Devani, J.

1. By this petition under Article 226 of the Constitution of India, the petitioners seek following substantive reliefs:

"10. (a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or an order/direction in the nature of certiorari or any other appropriate writ for quashing and setting aside the impugned decision/action of the Respondent No. 1 of inviting the 2nd Tender vide Tender Notice No. CE/HYD/01/2019-2020 dated 27th May, 2019 with amended qualification criteria in place of the Original Tender Notice dated 7th February, 2019; and

(b) that this Hon'ble Court be pleased to issue a writ of Mandamus or an order/direction in the nature of mandamus or any other appropriate writ directing the Respondent No. 1 to process and finalize the bids received pursuant to Original Tender Notice dated 7th February 2019;

or in the alternative (b-1) this Hon'ble Court without prejudice to the prayers 9(a) and 9(b) herein above, be pleased to declare that the qualifying criteria of the 2nd Tender Notice No. CE/HYD/01/2019-2020 dated 27th May, 2019 in so far as it excludes the experience under a sub-contract is illegal, arbitrary, unreasonable and violative of Article 14 and 19(1)(g) of the Constitution of India and the Respondents be directed to produce the Work Order issued by Respondent No. 1 to Respondent No. 2 in pursuance of the 2nd Tender and be further pleased to issue a writ of certiorari quashing and setting aside the Work Order issued by the Respondent No. 1 in favour of Respondent No. 2 in pursuance of the 2nd Tender dated 27th May, 2019."

2. The facts stated briefly are that on 07.02.2019, the first respondent - Surat Municipal Corporation (hereinafter referred to as the "SMC") published an e-Tender Notice No.CE/HYD/25/2018-2019 (Tender ID 348865), that is, original tender inviting tenders for supply, erection, testing and commissioning (SETC) and ten years of Operation and Maintenance (O&M) Contract of:

(A) Electromechanical valve with Programmable Logic Controller (PLC) or Remote Terminal Units (RTU) based for all ESR;

(B) Supervisory Control and Data Acquisition (SCADA) Automation System for all WDS, Booster and Intake Well &

(C) Integration of all existing PLC based SCADA system of Water Works, French Well, WDS with Centralized SCADA system of Surat City under Smart City Scheme for Surat Municipal Corporation.

2.1 The original tender notice specified for a pre-bid meeting to be held on 11.02.2019, prior to submission of bids. Furthermore, the notice specified that the last date and time of online submission of bid was on or before 20.02.2019, up to 18:00 hours and the submission of the tender fee and earnest money deposit (EMD) in hard copy, was on or before 28.02.2019 and the date of opening of price bid was to be informed later on (online). The estimated cost of tender was Rs.32,71,66,500/-.

2.2 The general description of the work being the technical, insofar as the same is relevant for the purpose, reads thus:

"Instrumentation, PLC & SCADA with Telemetry, Electrical & Mechanical works with associated Civil works for Intake Wells, Water Treatment Plants (WTP), Booster Stations, Water Distribution Stations (WDS), Elevated Service Reservoir (ESR) as applicable at Various Locations and as specified in tender which shall generally include but not limited to the following...".

"The work of PLC, SCADA, Automation & Telemetry shall be carried out only by the manufacturer or authorized system integrator (Shall be having valid authorization certificate of at least 5 years and shall be submitted along with work experience credentials for verification and approval of SMC during engineering approval stage) of the approved makes of PLC & SCADA specified in tender."

2.3 The period of completion envisaged under the tender notice was eighteen months. The qualifying criteria for the proposed bidders as stated in the tender, is extracted herein below:

"Qualification for this work will be based on the entire following minimum criteria regarding their particular experience, financial position, personnel and equipment capabilities and other relevant information as demonstrated by the Applicant's responses in the forms attached. The qualifications, capacity and resources of proposed subcontractors will not be taken into account in determining the applicant's compliance with the qualifying criteria.

(a) Qualification Criteria:

1) The Applicant shall provide evidence that their firm has been actively engaged in the Instrumentation works during the last 7 years in the role of Experienced Contractor/ Manufacturer (PLC-SCADA).

Estimated Value for qualification of tenderers shall be considered Rs.24,88,02,805 (SETC part of tender)

Particular Instrumentation Experience

The applicant shall provide evidence that he has successfully completed similar works within the last seven year completing on 31/03/2019. For this, the Work Completion Certificate shall be submitted along with the application incorporating Name of Work, Contract value-billing amount, date of commencement & completion of works, satisfactory performance of the contractor and any other relevant information.

Post qualification will be based on Applicants (Experienced Contractor/ Manufacturer) satisfying all the following minimum criteria regarding their particular experience, financial position, personnel and equipment capabilities and other relevant information as demonstrated by applicants' responses in the forms attached. The Applicant to note specifically that all information given including those in the form of various formats must be supported by certificates from respective issuing authorities:

a) Average Annual financial turnover during last 3 years, ending 31/03/2018 should be at least 30% of the estimated cost (i.e. of Rs.24.88 Crores = Rs.7.46 Crores.)

b) Experience of having successfully completed similar works during last 7 years ending 31/3/2019 should be either of the following:

i) Three similar completed works costing not less than the amount equal to 40% of the estimated cost (i.e. 40 % of Rs.24.88 Crores = Rs. 9.95 Crores)

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ii) Two similar completed works costing not less than the amount equal to 50% of the estimated cost (i.e. 50% of Rs.24.88 = 12.44 Crores)

0R

iii) One similar completed works costing not less than the amount equal to 80% 0f the estimated cost (i.e. 80 % of Rs. 24. 88 Crores = 19.91 Crores)

c) The Contractors / Companies should have solvency certificate of National or Schedule Bank amounting to Rs.4.98 Crores of current year (i.e. 20% of the estimated cost)

'Similar Work' means "Supplying, Erection, Testing & Commissioning of Automation and Control System which includes PLCS, Instruments, Analysers, Mechanical/ Electrical Equipments like Valves/ Actuators etc., SCADA Software and telemetry (Wireless transmission) for the Water supply system/ Water Treatment Plant or Sewage network/ Sewage Treatment Plant should be in operation for a period of minimum one year."

2.4 It is the case of the petitioners that broadly the qualifying criteria required that the applicant is engaged in instrumentation work in the last seven years in the role of experienced contractor/manufacturer of PLC - SCADA and would have undertaken an estimated value of work of Rs.24,88,02,805/-. The applicant was required to provide evidence of successful completion of similar work undertaken within last seven years, completing on 31.03.2019. The applicant was also required to provide authorisation certificate of at least five years along with work experience credentials of the approved makes of PLC and SCADA specified in the tender. Further, the applicant was required to have an average annual financial turnover during the last three years ending on 31.03.2018 to be at least 30% of the estimated cost of the original tender, that is, Rs.7.46 crores and was also required to have a solvency certificate of a National or a Scheduled Bank of Rs.4.98 crores of the current year. Further, the definition of "similar work" provided for the work in the said field to be in operation to be minimum period of one year.

2.5 On 11.02.2019, a pre-bid meeting was held by the SMC wherein, the authorised representative of the first petitioner (hereinafter referred to as the "petitioner - company") was present. On 13.02.2019, the petitioner - company submitted the pre-bid queries by e-mail to the SMC. On 14.02.2019, the SMC, without answering the pre-bid queries raised by the petitioner - company, issued the Addenda and Corrigendum-I to the e-tender notice, amending the qualification criteria inter alia including/adding the words "Oil and Gas Projects" in the definition of "similar work". The SMC also extended the last date for submission of technical bid to 6:00 p.m. on 27.02.2019 and for submission of tender fee and EMD, on or before 08.03.2019. Pursuant to the addenda and corrigendum, the petitioner-company sent an e-mail dated 23.02.2019 to the SMC requesting to amend the qualification criteria so as to include "work done in all Public Sector Units" instead of including a particular industry, but there was no response thereto. The petitioner - company submitted its bid with the relevant documents on 27.02.2019. On 28.03.2019, after evaluation of the technical bid submitted by the petitioner - company, the SMC sent an e-mail to the petitioner - company raising certain queries and requested to submit additional documents. By its letter dated 06.04.2019, the petitioner - company replied to the queries raised by the SMC along with additional documents. After submission of the additional documents and reply to the queries, the SMC returned the earnest money deposit (EMD) amount on 21.05.2019 to the petitioner - company without providing any justification or reason to cancel that tender, though website of n-procure showed the status of original tender as "evaluation in process".

2.6 It is the case of the petitioners that thereafter, it came to their knowledge that on 27.05.2019, a fresh Tender Notice (Online) No. CE/HYD/01/2019-20, that is, a second tender inviting tender for "Supply, Erection, Testing and Commissioning (SETC) and ten years of Operation and Maintenance (O&M) Contract of: (A) Electromechanical valve with Programmable Logic Controller (PLC) or Remote Terminal Units (RTU) based for all ESR; (B) Supervisory Control and Data Acquisition (SCADA) Automation System for all WDS, Booster and Intake Well & (C) Integration of all existing PLC based SCADA system of Water Works, French Well, WDS with Centralized SCADA system of Surat City under Smart City Scheme for Surat Municipal Corporation" with amended qualification criteria came to be issued by the SMC.

2.7 The period of completion envisaged under the tender was eighteen months. The qualifying criteria for the proposed bidders as stated in the said tender, is extracted herein below:

"Qualification for this work will be based on the entire following minimum criteria regarding their particular experience, financial position, personnel and equipment capabilities and other relevant information as demonstrated by the Applicant's responses in the forms attached. The qualifications, capacity and resources of proposed subcontractors will not be taken into account in determining the applicant's compliance with the qualifying criteria. Experience under Sub Contract will not be considered.

(a) Qualification Criteria:

1) The Applicant shall provide evidence that their firm has been actively engaged in the Instrumentation works during the last 7 years in the role of Experienced Contractor/ Manufacturer (PLC-SCADA).

Estimated Value for qualification of tenderers shall be considered Rs.24,88,02,805 (SETC part of tender)

Particular Instrumentation Experience

The applicant shall provide evidence that he has successfully completed similar works within the last seven year completing on 31/03/2019. For this, the Work Completion Certificate shall be submitted along with the application incorporating Name of Work, Contract value-billing amount, date of commencement & completion of works, satisfactory performance of the contractor and any other relevant information.

Post qualification will be based on Applicants (Experienced Contractor/ Manufacturer) satisfying all the following minimum criteria regarding their particular experience, financial position, personnel and equipment capabilities and other relevant information as demonstrated by applicants' responses in the forms attached. The Applicant to note specifically that all information given including those in the form of various formats must be supported by certificates from respective issuing authorities: Sub Contractor is not valid for above criteria.

a) Average Annual financial turnover during last 3 years, ending 31/03/2018 should be at least 30% of the estimated cost (i.e. of Rs.24.72 Crores = Rs.7.41 Crores.)

b) Experience of having successfully completed similar works during last 7 years ending 31/3/2019 should be either of the following:

i) Three similar completed works costing not less than the amount equal to 40% of the estimated cost (i.e. 40 % of Rs.24.72 Crores = Rs. 9.88 Crores)

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ii) Two similar completed works costing not less than the amount equal to 50% of the estimated cost (i.e. 50% of Rs.24.72 = 12.36 Crores)

0R

iii) One similar completed works costing not less than the amount equal to 80% 0f the estimated cost (i.e. 80 % of Rs. 24.72 Crores = 19.97 Crores)

c) The Contractors / Companies should have solvency certificate of National or Schedule Bank amounting to Rs.6.43 Crores of current year (i.e. 20% of the Estimated cost)

Similar work means "Supplying, Erection, Testing & Commissioning of Automation and Control System which includes PLCS, Instruments, Analysers, Mechanical/ Electrical Equipments like Valves/ Actuators etc., SCADA Software and telemetry (Wireless transmission) for the Water supply system/ Water Treatment Plant or Sewage network/ Sewage Treatment Plant/ Oil and Gas Project."

2.8 The qualifying criteria required the applicant to be engaged in instrumentation work in the last seven years in the role of experienced contractor/manufacturer of PLC - SCADA and should have undertaken an estimated value of work of Rs.24,72,20,600/-, however, the qualifying criteria came to be amended by excluding experience under sub-contract from the said criteria. The words "Sub-contractor is not valid for above criteria" were added, which were not in the original tender. The applicant was required to provide evidence of successful completion of similar work undertaken within last seven years, completing on 31.03.2019 and the condition for providing the valid authorisation certificate was reduced from five years to three years.

2.9 Further, the applicant was required to have an average annual financial turnover during the last three years which was at least 30% of the estimated cost of the original tender, that is, Rs.7.41 crores. The applicant was also required to have a solvency certificate of National or Scheduled Bank amounting to Rs.6.43 crores of the current year (that is 20% of the estimated cost). According to the petitioner, 20% of the estimated cost comes to Rs.4.94 crores. Further, the requirement of being in the field for a minimum period of one year, as mentioned in the definition of similar work provided in the original tender, was removed.

2.10 The said tender notice specified that the last date and time for online queries was 03.06.2019 at 11:00 hours and the last date of online submission of tender documents was on or before 15.06.2019, up to 18:00 hours and the submission of PQ supporting documents mentioned in Technical Bid, Tender Fee and EMD and Addenda - Corrigendum if any in hard copy, was on or before 24.06.2019 up to 17:00 hours. It is the case of the petitioners that accordingly, vide e-mail dated 01.06.2019, the petitioner company, submitted pre-bid queries to the SMC, but there was no response thereto. On 12.06.2019, the SMC issued the Addenda and Corrigendum-I to the second tender notice amending/modifying the tender notice (online) without dealing with the pre-bid queries raised by the petitioner - company. The SMC also extended the last date for submission of technical bid to 19.06.2019 up to 18:00 hours and submission of Tender Fee and EMD, on or before 27.06.2019, up to 17:00 hours. It is the case of the petitioners that the petitioner - company sent a reminder letter dated 17.06.2019 to the SMC pointing out that the pre-bid queries raised by the petitioner company have not been addressed in the addendum published and no reply is received to the pre-bid queries sent vide e-mail dated 01.06.2019.

2.11 It is the case of the petitioner - company that it could not submit its bid in pursuance of the second tender in the light of the revised eligibility criteria, more particularly, with reference to sub-contracting. According to the petitioner - company, it was otherwise technically qualified for being awarded the second tender but for the unjustified and unwarranted criteria prohibiting sub-contracting because of which, the petitioner - company would not be eligible. According to the petitioners, sub-contracting of tender task has no nexus with the either the ability of a bidder to execute the work or to the ultimate result sought to be achieved by the SMC. It is submitted that by such process, only the second respondent - Skyway Infraprojects Private Limited, remained in the fray to the exclusion of all competition.

2.12 Subsequently, from an article published in daily newspaper Gujarat Samachar, it came to the knowledge of the petitioners that the Technical Scrutiny Committee has considered the offer of the second respondent for the second tender for Rs.33.90 crores, which is higher than the estimated cost of the project.

2.13 Thereafter, the petitioners tendered two applications dated 24.07.2019 to the Public Information Officer of the SMC under the Right to Information Act, 2005 (hereinafter referred to as "the RTI Act") asking for details/documents relating to the original tender and the second tender. Subsequently, during the pendency of the petition, such documents were received, whereafter, the petitioners sought amendment of the petition, which came to be allowed.

2.14 According to the petitioners, from the documents received by them on 26.08.2019 pertaining to the original tender and the second tender, it appears that the second respondent has not provided any documents to demonstrate that it is engaged in the business of instrumentation work since the last seven years though the tender conditions require the same. It is the case of the petitioners that the petitioner - company was disqualified in the original tender for certain irrelevant technical grounds; whereas, the second respondent who does not meet with the technical qualification criteria for the original as well as the second tender, has been treated as technically qualified. In support of such a submission, the petitioners have placed reliance upon following documents:

"(a) Technical Evaluation Report dated 06.03.2019 submitted by Sapient Techno Consultants for the Original Tender dated 07.02.2019.

(b) Technical Evaluation Report dated 24.04.2019 submitted by Sapient Techno Consultants for the Original Tender dated 07.02.2019 along with the report of the engineer qualifying Sky Way Infra Projects Pvt. Ltd. for the Original Tender.

(c) Technical Evaluation Report dated 03.07.2019 submitted by Sapient Techno Consultants for the 2nd Tender dated 27.05.2019.

(d) Letter dated 18.06.2019 sent by Velox Automation Pvt. Ltd. to the Respondent No. 1.

(e) Work Performance Certificates dated 05.10.2017 and 09.04.2019 issued by Kulgaon - Badlapur Municipal Council submitted by the Respondent No. 2 to the Respondent No. 1."

2.15 It is in the aforesaid backdrop that the petitioners have filed the present petition, seeking the reliefs noted hereinabove.

3. Mr. R. S. Sanjanwala, Senior Advocate, learned counsel for the petitioners, submitted that since according to the respondents only one of the tenderers satisfied the technical criteria and was found to be qualified, in view of the Central Vigilance Commission (CVC) Guidelines, the first tender came to be scrapped and a new tender was invited. The attention of the court was invited to certain changes made in the eligibility criteria in the second tender, to submit that if such tender is by way of a re-tender, then, that re-tendering has to be on the same terms and conditions; whereas in the light of the changes made in the eligibility criteria, the tender cannot be considered as a re-tender but has to be considered as a fresh tender and, therefore, in view of the CVC guidelines, if only one tenderer is found to be eligible, the tender has to be scrapped and re-tendered. The SMC, therefore, was not justified in issuing the work order in favour of the second respondent.

3.1 Next it was submitted that, the petitioner - company has been wrongly held to be disqualified in the technical bid in the first tender. In this regard, the attention of the court was invited to the communication dated 6th March 2019 of Sapient Techno Consultants submitting updated draft evaluation report of SMC SCADA, wherein, it has been stated that in their observation, work experience certificates submitted by both bidders are not clear in terms of qualification requirement/does not meet tender requirements. Therefore, on 09.04.2019, notices were issued to both the tenderers to submit necessary documents. It was submitted that Sapient Techno Consultants had carried out evaluation of the technical bids and submitted a report dated 24.04.2019, wherein, it has been stated that the petitioner - company does not technically qualify in the tender; whereas, the second respondent technically qualifies for the tender. Referring to the qualifying criteria set out in the tender document, it was pointed out that clause (b) thereof provides for experience of having successfully completed "similar works" during last seven years ending 31.03.2019. It was submitted that when the tender was invited before 31.03.2019, the requirement of having completed similar works during the last seven years ending 31.03.2019, appears to be erroneous and the actual date should have been 31.03.2018. It was submitted that it is only because the tender provides for having successfully completed similar works during last seven years ending 31.03.2019, that the petitioner is held to be disqualified. Reference was made to the column indicating the enhancement factors that would be used for the cost of works executed and the financial figures to a common base for the value of works completed in India, to point out that the years referred therein are 2011-12 to 2017-18, to submit that the intention appears to be to consider the works completed by 31.03.2018 and that, 31.03.2019 appears to have been wrongly mentioned. It was submitted that, therefore, the petitioner - company has wrongly been disqualified in the technical bid though it met with the required technical criteria.

3.2 It was further submitted that the second respondent has not provided any documents to demonstrate that it is engaged in the business of instrumentation works since the last seven years, though the tender conditions require the same. It was submitted that the work performance certificate produced by the second respondent does not specify that the work done by it falls within the definition of "similar work" and that the second respondent does not meet with the technical qualification criteria for the original as well as the second tender, despite which, it has been treated as technically qualified. It was pointed out that after notices came to be issued on 09.04.2019 to both the bidders, the second respondent had not submitted any new material and that, pursuant to a communication addressed to it, the Kulgaon Badlapur Municipal Council had tendered a work performance certificate.

3.3 Attention was invited to the work performance certificate issued by the Kulgoan Badlapur Municipal Council and the description of the work executed by the second respondent, to submit that the work includes civil work and the extent of automation work is not clear. It was submitted that these details were available with the SMC, but they were not satisfied and had called for further information. However, subsequently, on the basis of the same certificate, they were satisfied that the second respondent meets with the technical qualifications. It was submitted that what was required was the value of the work, which the certificate does not provide. It was submitted that the second respondent had to give a certificate showing that it had done similar work and that, if the consultant was not satisfied with the first certificate, the second certificate does not give any better details. Therefore, on the basis of such certificate, the second respondent could not have been held to be technically qualified.

3.4 Reference was made to the contents of the affidavit-insur-re-joinder filed on behalf of the second respondent, to submit that the contents of the first work performance certificate have been reiterated therein.

3.5 Next it was submitted that the second tender has been invited by changing the eligibility conditions, one of which is that experience of sub-contract will not be considered. It was submitted that by introducing a term that experience of sub-contract will not be considered, the petitioner can be easily eliminated from the tender process.

3.6 It was further submitted that in view of disqualification of the petitioner in the first tender, as there was only one tenderer in the fray, in view of the CVC guidelines, the SMC was required to re-tender the same. However, in the re-tender process, there was a material change in the terms and conditions and hence, the second tender cannot be treated to be a re-tender but has to be treated as a fresh tender. Reference was made to the Office Memorandum dated 7th May, 2004 issued by the Government of India, Central Vigilance Commission, regarding pre-qualification criteria, wherein it has been stated that it should be ensured that PQ criteria are exhaustive, yet specific and there is fair competition. It should also be ensured that the PQ criteria are clearly stipulated in unambiguous terms in the bid documents. It was contended that, therefore, any criteria, which exclude fair competition, cannot be adopted and that there has to be some explanation for change in the tender condition. It was submitted that the second respondent is basically a civil contractor and for the experience of the kind necessary, it has produced certificate of Velox.

3.7 It was submitted that the rejection of the petitioner - company's tender in the first round is ex facie arbitrary and bad and that the petitioner - company was qualified in the first round; whereas, the second respondent's tender was wrongly accepted in both, the first as well as second round. It was urged that introduction of new conditions in the second tender, which disqualified the petitioner - company, is arbitrary and irrational; and that the second tender is required to be treated as a fresh tender as the terms and conditions have been changed.

3.8 It was submitted that the criteria of seven years experience is there in the first as well as second tender and that the consultant has wrongly accepted the claim of the second respondent that it had seven years' experience.

3.9 Mr. Sanjanwala next contended that the appointment of consultant is not contemplated in the tender documents; whereas all decisions are based on the Consultant's report and are being justified by relying on it. It was argued that it was the SMC and its officers who had to apply their mind to the question as to whether or not the eligibility criteria were met with, but they have mechanically relied upon the Consultant's report.

3.10 It was urged that the premise that the petitioner - company had not challenged its disqualification is erroneous, inasmuch as it was never informed about it. It was contended that the mere fact that the EMD was returned, does not imply that the petitioner - company was disqualified and therefore, there was no reason or cause of action for the petitioner - company to challenge its earlier disqualification as it was never informed about such disqualification; and that, in the second tender, in the light of the changed terms and conditions, the petitioner - company was ineligible and hence, it did not submit its tender.

3.11 In conclusion, it was urged that the petitioner - company has been wrongly disqualified in the first tender process, and wrongly kept out of the second tender process by changing the tender conditions; and the second respondent which does not fulfil the eligibility criteria has been held to be qualified. The petition, therefore, requires consideration and deserves to be allowed in terms of the reliefs prayed for.

4. Vehemently opposing the petition, Mr. Prashant Desai, Senior Advocate, learned counsel for the SMC, vehemently submitted that the tender conditions are not justiciable. In support of such submission, the learned counsel placed reliance upon an unreported decision of this court in Awatech Solutions (I) Pvt. Ltd. v. Rajkot Municipal Corporation and Others, rendered on 29.04.2014 in Special Civil Application No.4316 of 2014, wherein, the court has held that, even if the argument advanced by the learned advocate for the petitioner that the technology should be kept open is accepted by the Court, the same shall not be tenable in law inasmuch the Government can choose its own method to arrive at a decision. The court held that, it is for the tendering authority to fix its own terms of tender and the same is not open to judicial scrutiny. The authority calling for tender is the best judge to prescribe the terms and conditions of tender and it is not for the court to say whether the technology as in the said case is suitable or not.

4.1 It was submitted that the petitioner - company has not challenged its disqualification in the original tender process prior to the issuance of the second tender notice; and except for putting a query at the pre-bid stage, it has not challenged the conditions of the second tender nor has it participated in the tender process. Therefore, the petitioner - company is precluded from challenging its disqualification in the original tender; and also cannot be permitted to challenge the terms and conditions of the second tender as it has not participated in the tender process.

4.2 Reliance was placed upon a decision of the Supreme Court in Municipal Corporation, Ujjain v. BVG India Limited, (2018) 5 SCC 462 , wherein, the court held thus:

"9. The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by this Court Tata Cellular v. Union of India, (1994) 6 SCC 651 , wherein this Court observed that the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in exercise of that power of judicial review. The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose, the exercise of that power will be struck down."

"14. The judicial review of administrative action is intended to prevent arbitrariness. The purpose of judicial review of administrative action is to check whether the choice or decision is made lawfully and not to check whether the choice or decision is sound. If the process adopted or decision made by the authority is not mala fide and not intended to favour someone; if the process adopted or decision made is neither so arbitrary nor irrational that under the facts of the case it can be concluded that no responsible authority acting reasonably and in accordance with relevant law could have reached such a decision; and if the public interest is not affected, there should be no interference under Article 226.

15. It is well settled that the award of contract, whether it is by a private party or by a public body or by the State, is essentially a commercial transaction. In arriving at a commercial decision, the considerations which are of paramount importance are commercial considerations. These would include, inter alia, the price at which the party is willing to work; whether the goods or services offered are of the requisite specifications; and whether the person tendering the bid has the ability to deliver the goods or services as per the Specifications. It is also by now well settled that the authorities/State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation.

16. The State, its corporations, instrumentalities and agencies have a public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary power under Article 226 with great caution and should exercise them only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. (See the judgment in Air India Ltd. v. Cochin International Airport Ltd.,2002 2 SCC 617) ."

"27. Thus, only when a decision-making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions, power of judicial review can be exercised. However, if it is bona fide and in public interest, the court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision has been taken appropriately in public interest, the court ordinarily should exercise judicial restraint. When a decision is taken by the authority concerned upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with."

"39. In Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 , this Court highlighted the freedom of the owner to decide in matters of tenders as follows:

"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial held that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."

(emphasis supplied)"

"40. In Central Coalfields, (2016) 8 SCC 622, the Court held that the employer can decide to even deviate from the NIT:

"48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty, (1979) 3 800 489. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot."

(emphasis supplied)"

"45. Evaluating tenders and awarding contracts are essentially commercial transactions/contracts. If the decision relating to award of contract is in public interest, the courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. The power of judicial review will not be permitted to be invoked to protect private interest by ignoring public interest. Attempts by unsuccessful bidders with an artificial grievance and to get the purpose defeated by approaching the court on some technical and procedural lapses, should be handled by courts with firmness. The exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. In the matter on hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on the part of the expert body while in action. So also, we do not find any bias or mala fides either on the pan of the corporation or on the part of the technical expert while taking the decision. Moreover, the decision is taken keeping in mind the public interest and the work experience of the successful bidder."

"64. Thus, the questions to be decided in this appeal are answered as follows:

64.1 Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder;

64.2 A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any third party for its qualification.

64.3 It is not open to the court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the court ordinarily should exercise judicial restraint."

4.3 It was submitted that, thus, it is not open for this court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for the purpose of arriving at any conclusion, unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met. It was submitted that in the present case, there are no allegations of mala fide nor can the decision of the SMC be said to be biased, arbitrary, irrational or perverse, and hence, this court may not interfere with the tender process.

4.4 Reliance was also placed upon a decision of the Supreme Court in the case of Sam Build Well (P) Ltd. v. Deepak Builders, (2018) 2 SCC 176 , wherein, the court held thus:

"10. Having heard the learned counsel for both the parties, it is important to set out the parameters for judicial review in cases like the present one. In a similar case, namely, Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd, (2016) 16 SCC 818 , Para 4 2(a) of Section III of the tender conditions in that case again spoke of a certain minimum number of "similar contracts" as previous work experience. The question before this Court was whether an inter-State high speed railway project could be similar to metro civil construction work. After laying down the parameters of judicial review and referring to various judgments for the same, this Court held:

"15 We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional court must defer to his understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding to appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.

16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court."

11. In Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 , this Court referred to various judgments, including the Judgment in Afcons Infrastructure Ltd., (2016) 16 SCC 818, and concluded as follows:

"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."

12. We have already noticed that three expert committees have scrutinised Respondent 1's tender and found Respondent 1 to be ineligible. The impugned judgment of the Division Bench of the High Court expressly states that no mala fides are involved in the present case. Equally, while setting aside the judgment of the learned Single Judge, the Division Bench does not state that the three expert committees have arrived at a perverse conclusion. To merely set aside the judgment of the learned Single Judge and then Jump to the conclusion that Respondent 1's tender was clearly eligible, would be directly contrary to the judgments aforestated. Not having found mala fides or perversity in the technical expert reports, the principle of judicial| restraint kicks in, and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken. As a result, we find that the learned Single Judge was correct in his reliance on the three expert committee reports. The Division Bench, in setting aside the aforesaid judgment, has clearly gone outside the bounds of judicial review. We, therefore, set aside the judgment of the Division Bench and restore that of the learned Single Judge."

4.5 It was submitted that in the original tender, during the course of evaluation, the petitioner was not found to be eligible, and hence, in terms of the CVC guidelines, the tender was reissued. It was submitted that the petitioner is even otherwise disqualified as it does not have the requisite experience, therefore, even without the changed conditions, it would be disqualified even in the second tender. It was contended that the scope of judicial review insofar as the conditions contained in a tender are concerned, is very limited. It was submitted that the condition of excluding work experience as sub-contractor in the second tender is in consonance with the consistent policy of the SMC and has also been approved by this court and hence, no case has been made out for review of the tender conditions. Reliance was placed upon a decision of the Division Bench of this court in the case of Sapara Dilip Bharatbhai v. State of Gujarat, (2014) 3 GCD 2552 , wherein, on behalf of the fourth respondent therein, it was contended that one cannot come to a definite conclusion that the work done by a sub-contractor cannot be taken into consideration and in case of any ambiguity, his client should get the benefit of qualification clause. The court observed that, clause 3.1 having specifically excluded work completed as sub-contractor from consideration, there is no ambiguity or conflict between clause 3.1 and 4, and as such, any reasonable individual, on interpretation of clauses 3.1 and 4, would come to the conclusion that the role of an applicant as sub-contractor cannot be taken into consideration and only other past experiences, either as prime contractor or partner of a joint venture could be taken into consideration and the certificate from organizations referred to in clause 4 are provided for the certification of partnership with whom the applicant acted in the past as a partner of the joint venture. Therefore, the condition regarding excluding the work completed as a sub-contractor from consideration has been upheld by this court.

4.6 It was, accordingly, urged that this court may not exercise discretion and interfere with the tender process and that, the petition being devoid of merits, deserves to be dismissed.

5. Mr. S. N. Soparkar, Senior Advocate, learned counsel for the second respondent, invited the attention of the court to the reliefs claimed in the petition, to submit that the petitioner has not challenged its disqualification nor has it said that its tender was wrongly rejected. Reference was made to the decision of the SMC, whereby, after considering the report of the consultant, a decision has been taken that the petitioner was not eligible and the second respondent was eligible, therefore, there has to be re-tendering. It was submitted that therefore, the decision as regards disqualification of the petitioner and re-tendering has been taken by the SMC and not the consultant, and therefore, the contention that it is the Consultant who has taken the decision and not the SMC is misconceived and incorrect.

5.1 It was submitted that, thereafter, the petitioner - company has received back the EMD; and a fresh tender has been issued and hence, the petitioners were well aware that the technical bid has not been accepted. Attention was invited to a report dated 26.05.2019 of the Commissioner, SMC to the Secretary, SMC in the context of the original tender for placing the same before the Standing Committee, to point out that against column 4(a), it has been inter alia stated that only Sky Way Infra Projects Pvt. Ltd., Mumbai had technically qualified. Since, at the first attempt there was a single tender, both the tenders were filed and keeping in view the overall interest of the work, tender has been re-invited. It was submitted that whoever responds to the tender notice is deemed to be aware of such fact. It was submitted that there was a decision to reject the petitioner - company's bid, which was known to it, though not specifically communicated; however, there is no challenge to such rejection. Moreover, there is not a single ground in the petition raising a dispute regarding rejection of its tender. It was submitted that if the petitioner - company was not informed about the rejection of its tender, it may be excused till the date of knowledge. But the day on which, the fresh tender came to be issued, the petitioners knew about it and responded to the tender but did not dispute its rejection.

5.2 Reference was made to a communication dated 01.06.2019 of the petitioner - company (Annexure 'H') whereby, it has raised certain queries. It was submitted that even if the queries were not responded to, the petitioners had no reason to believe that the tender process would not proceed further. It was pointed out that after it got information under the RTI Act, the petitioners amended the petition, but even then, no dispute has been raised in this regard and that the arguments advanced before the court are de hors the averments made in the petition. It was contended that even if the reliefs, as prayed for in the petition, are granted, the petitioner - company would not be qualified and therefore, the whole exercise is academic. The petition, therefore, deserves to be dismissed.

5.3 The attention of the court was drawn to the averments made in paragraph 3.5 of the affidavit-in-rejoinder filed by the petitioner, wherein, it has, inter alia, been stated that as per the tender document, the bidder would have qualified if he would have completed "Three similar completed works costing not less than the amount equal to 40% of the estimated cost i.e. Rs.9.88 crores or two similar works costing not less than the amount equal to 50% of the estimated cost i.e. Rs.12.36 crores or one similar completed work costing not less than the amount equal to 80% of the estimated cost of Rs.19.91 crores during the last 7 years ending 31.03.2018 (wrongly mentioned as 31.03.2019)". It was submitted that if it is the petitioner's case that 31.03.2019 is wrongly mentioned, it should have challenged the condition. It was submitted that it is an accepted position that if the date is 31.03.2019, the petitioner is disqualified; however, no prayer or averment has been made in the petition to the effect that such tender condition is bad. It was contended that the petitioners were aware of the view taken by the Consultant but has not chosen to challenge it and, therefore also, the petition must fail.

5.4 Next it was submitted that, insofar as the second tender is concerned, it is the case of the petitioners that the additional condition of sub-contractor is introduced to oust the petitioner-company from the tender process and to benefit the second respondent. It was submitted that there is no incorrectness in the second tender, inasmuch as, even without the condition of sub-contractor, the petitioner - company would not be eligible. There was no one else who was otherwise eligible. It was submitted that the second respondent has no subcontracting and therefore, the condition makes no difference to it. Therefore, it is not as if the condition has been put to make the second respondent eligible, and hence, the whole bogey of sub-contractor is mis-conceived and a non issue.

5.5 It was submitted that, there is no prayer in the petition that the second respondent is not eligible and the arguments advanced before the court are not supported by any pleadings in the memorandum of petition. According to the learned counsel, if the first tender is taken to its logical end, the petitioner - company is bound to fail and that the argument that second respondent is not eligible, must fail, due to want of pleading and want of prayers.

5.6 Adverting to the alternative prayer, it was submitted that even if the condition excluding experience as sub-contract is quashed, it will not bring in the petitioner - company or oust the second respondent. The petitioner - company would still remain ineligible and the second respondent would still be eligible. It was urged that on facts, none of the three prayers deserve acceptance and on this ground also, the petition must fail.

5.7 Insofar as the eligibility of the second respondent is concerned, attention was invited to the definition of "similar work" as defined in the original document. It was submitted that the second respondent needs to show that it has done similar work. Reference was made to the evaluation report submitted by the Consultant to point out the manner in which the work has been analysed. It was submitted that the evaluation of the tender condition is not so unreasonable that a reasonable person would not take such a view. It was submitted that Kulgoan Badlapur Municipal Council gave details which shows the break up and the Consultant was satisfied with the same. It was contended that sub-details and sub-breakup were not required to be given and therefore, the argument that the second respondent was and is not eligible must also fail.

5.8 Insofar as the contention that the second respondent's principal business was civil construction is concerned, the attention of the court was invited to the financial statement of the second respondent for the period from 01.04.2015 to 31.03.2016, and more particularly, the disclosure of general information about the company. It was pointed out that insofar as the principal business activities of second respondent company is concerned, one of the main activities is water collection, treatment and supply which constitutes 40% of the turnover of the company. It was, accordingly, submitted that the contention regarding construction being the principal business is misconceived. It was further submitted that in the tender conditions, there is no requirement that SCADA should be of Rs.21 crores. It was urged that, therefore, nothing has been shown by the petitioner as to why the second respondent's tender should be rejected.

5.9 Dealing with the contention that the second tender is a fresh tender, it was submitted that in the second tender, the work to be carried out remained identical except that some tender conditions came to be changed. According to the learned counsel, if the contention that a new condition cannot be inserted were to be accepted, it would lead to disastrous consequences and hence, the argument that the second tender is a fresh tender, must fail.

5.10 As regards the contention that the seven years criterion was wrongly applied, it was submitted that in the first year, the petitioners have not challenged the same and in the second year, the petitioner - company does not qualify. It was urged that, in this background, this court would not sit in judgment over the conditions of the tender.

5.11 It was submitted that the Supreme Court has held that the evaluation of the tender must be left to the Consultant. In this case, there is no allegation against the Consultant. Insofar as the contention that it is not permissible to avail the services of a consultant is concerned, it was pointed out that the petitioner itself is also a consultant for the Ahmedabad Municipal Corporation (AMC).

5.12 Reference was made to the further affidavit of the second respondent, wherein, it has been averred that the Ahmedabad Municipal Corporation, on 12.05.2010 had issued a work order in favour of M/s. Nish Automations Pvt. Ltd., the petitioner herein to prepare DPR/design SCADA with instrumentations and control based monitoring system for existing water supply and sewerage system of Ahmedabad city and approval of the DPR from JNNURM/funding agencies. Thus, M/s. Nish Automations Pvt. Ltd. was appointed as consultant by the Ahmedabad Municipal Corporation. It is further averred that the present petitioner being consultant to the Ahmedabad Municipal Corporation, has also provided qualification criteria for the tender issued by the AMC. In the said tender, the definition of similar work was given. As per the qualification criteria, the petitioner itself, as the consultant of AMC has provided that the joint venture/back to back award/ sub-contracting/ experience shall not be allowed. The second respondent has also submitted supporting documents in support of such averments at Annexure-R/I to the said affidavit. The learned counsel emphatically argued that when it comes to opining whether sub-contractor's experience is good or bad, the petitioner - company as consultant of the Ahmedabad Municipal Corporation says that it is not good; whereas, if the Surat Municipal Corporation adopts the same criteria, the petitioners object to the same. It was submitted that therefore, the criteria adopted by the SMC is a permissible criteria and does not warrant interference by this court.

5.13 Next, it was submitted that the decision to re-tender was taken on 29.04.2019. The date of downloading the tender was 27.05.2019 to 15.06.2019. On 01.06.2017, the petitioners responded to the tender notice by raising certain queries. Thus, the petitioners had seen the tender and the terms of the tender. Inviting attention to the time table provided in the tender, it was submitted that the petitioners were well aware of time lines and that, even if there was no response to the representation made by the petitioner - company, the petitioners were aware that the tender process would go on, and hence, there is no justification for not challenging it in time. It was emphatically argued that non-answering of the queries raised by the petitioner- company was no reason for the petitioners to believe that the tender process would not go on. Therefore, the petitioners permitted the tender process to proceed and ultimately, the work order was issued in favour of the second respondent on 09.08.2018; whereas, the petition has been filed on 20.08.2018, and hence, the petition suffers from the vice of delay and acquiescence, apart from waiver. It was submitted that the petitioners not having come when the tenders were being submitted, on the ground of delay and laches also, the petition must be dismissed.

5.14 Reference was made to the letter dated 17.06.2019 of the petitioner - company to submit that the tenderer cannot say who is to be treated as eligible. Moreover, the petitioner - company has also asked to expand the scope of the tender. Reference was made to the decision of the Supreme Court in The Silppi Constructions Contractors v. Union of India, (2019) 11 Scale 592 , wherein, it was held thus:

"19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contractors involving technical issues the courts should be even more reluctant because most of us in judges 'robes do not have the necessary expertise to adjudicate upon technical issues beyond out domain. As laid down in the judgments cited above the courts should not use magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.

20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity."

5.15 It was submitted that in this case, no bias or mala fides are shown, nor is it shown that the decision is unreasonable; hence, no case has been made out for intervention by this court.

5.16 The learned counsel further drew the attention of the court to the newspaper report placed on record in a compilation of documents submitted by the SMC, to point out the importance of the project. It was submitted that the project is of public importance and delaying the process does not help anyone. Reliance was placed upon the decision of this court in Aahna Air Services Pvt. Ltd. v. State of Gujarat, rendered on 29.04.2016 in Special Civil Application No. 5338 of 2016, for the proposition that courts have consistently held that the scope of judicial review in the context of conditions of tender is limited to examination on the basis of arbitrariness, discrimination or malice. The court held thus:

"14. Thus, Courts have consistently held that the scope of judicial review in the context of conditions of tender is limited to examination on the basis of arbitrariness, discrimination or malice. Examined from such angle, if the Board, looking to the enormity and complexity of the tasks involved, required past experience of supplying minimum 1000 vehicles for continuous period of 7 days, we do not see it in any manner, arbitrary or discriminatory. It may be that a few contractors would be shaken out of contention. It may even be possible that this steep condition may leave very few contractors in the fray. However, when the peak requirement of the Board is more than 3500 vehicles per day for a span of about 8 to 10 days, the imposition of condition of the past experience of less than 1/3rd thereof certainly cannot be said to be arbitrary. If we accept the suggestion of the counsel for the petitioner, the question would arise, where we should one draw the line? Would the experience of supplying 500 vehicles be sufficient or would lesser number be suitable? This certainly is not the task or even within the expertise of the Court to do. Unless seen to be wholly arbitrary, choice of prescription of a condition must lie with the Board. It is possible that because of lesser competition, the tender rates may go up. However, the financial consideration cannot be the sole or even the prime motive behind awarding the contract of this nature. When future of close to 20 lacs students of the State is at stake, some additional expenditure would certainly not prompt us to delete the condition and substitute the requirement of past experience from that which has been prescribed by the Board. What is of paramount importance is of the ability of the agency to successfully perform the task and reliability of the agency to do so."

5.17 It was submitted that the petitioner - company cannot say that it waited till eternity for its query to be answered. When the other queries are dismissed, the petitioner company's query is deemed to have been rejected. In conclusion, it was submitted that the petition, as framed, must fail as none of the prayers deserve to be granted and that, even on the additional ground urged before the court, the petition must fail. It was submitted that the formal contract has not been awarded in view of the statement made by the learned counsel for the Corporation that it would stay its hands till the petition is decided. It was urged that the petition be dismissed and the interim protection so operating, be vacated.

6. In rejoinder, Mr. Sanjanwala, learned counsel for the petitioners invited the attention of the court to the decision of the Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651 , wherein, the court held thus:

"77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceeded its powers?

2. Committed an error of law,

3. Committed a breach of the rules of natural justice,

4. Reached a decision which no reasonable tribunal would have reached or,

5. Abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality: This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesday unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696 , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention"."

"81. Two other facets of irrationality may be mentioned.

(1) It is open to the court to review the decisionmaker's e-valuation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment,1980 41 P&CR 255, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion.

(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Bernet London Borough Council, ex p Johnson,1989 88 LGR 73 , the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down."

6.1 It was urged that the Corporation would benefit by Rs.5 crores as the petitioner - company has quoted below the accepted tender, and hence, there would be substantial saving of about 15% to 18%, which is in public interest.

6.2 Reference was made to the qualifying criteria in the original tender to submit that what is clearly intended is that the seven years for the purpose of this tender should be the seven financial years preceding the tender viz. 2011-12 to 2017-18. Condition (a) of the eligibility criteria takes into consideration the average annual financial turnover during the last 3 years, ending 31.03.2018. It was submitted that it would never have been the intention of the authority who invited the tender to put the condition with regard to the last seven years completing on 31.03.2019. It was pointed out that the tender process has commenced in the financial year 2018-19, and hence, the question of requiring experience till 31.03.2019 would not arise. It was submitted that when the SMC intended to complete the process in the year 2018-19, it is evident that when they talk about seven years, it has to be 2011-12 to 2017-18. It was submitted that the arguments of the respondents overlook the condition of one year (should be in operation for a period of one year) in terms of the definition of similar work and, therefore, the work done in the year 2019 would not be eligible, and hence also, the condition has to be read as experience till 31.3.2018 and not 31.3.2019. It was submitted that insofar as the second tender is concerned, it is for the next financial year and therefore, the experience till 31.3.2019 is justified.

6.3 It was submitted that the expression "similar works" contemplates only automatic and control system. Consequently, the effective work experience cited has to be for automatic system for water supply. Every mechanical instrumentation and electrical work will not qualify as automation and control work. It was submitted that at the first instance the Consultant did not find certificate submitted by the second respondent to be adequate. The certificate supplied on 09.04.2019 has no details; therefore, the SMC contacted the employer who has not given the break up and hence, there was no basis for the SMC to find that the second respondent met with the eligibility criteria. It was submitted that it is the process which is challenged, namely, the irregularity and irrationality of the process.

6.4 Next it was submitted that the petition was filed at a stage when there was no clarity regarding the tender process. It was urged that no contractor would want to get into litigation with the authority; therefore, the petitioners went to the authority with a representation and made a suggestion and in the process, the filing of the petition was delayed. But the petitioners have immediately come to court when it found that the work order has been issued in favour of the second respondent. It was contended that what is to be seen is whether there is deliberate and willful delay and laches, which is not so in the present case. The learned counsel urged that this is not a petition that can be termed as an afterthought. The petitioners have not slept over their rights. It was submitted that all the while the website continued to show that the first tender was under process and all the documents came to be supplied to the petitioners pending the petition, after which, the petitioners have amended the petition to incorporate prayers.

6.5 It was submitted that the petitioners have amended the petition to challenge the disqualification of the petitioner - company and the qualification of the second respondent in the tender process. It was contended that the challenge has to be read along with the grounds of challenge and that even the rejoinder becomes relevant when the documents are coming on record during the pendency of the petition. It was submitted that a hyper technical approach of picking the prayer in isolation is not permitted. According to the learned counsel, if the prayers are read along with the affidavit-in-rejoinder, the reliefs prayed for are adequate to support the two fold prayers, namely: (i) to direct the SMC to pursue the first tender by considering the petitioner - company to be technically qualified; and (ii) if they want to proceed with the second tender, the terms and conditions are irrational and consequently, it was not possible for the petitioner - company to participate.

6.6 It was argued that the second respondent does not qualify for the second tender for the same reason that it did not qualify for the first tender. It was submitted that if the petitioner's prayer is to scrap both the processes, the prayers are widely worded and therefore, the petition cannot be rejected for a technical reason. It was submitted that the certificate submitted by the Kulgaon Badlapur Municipal Council does not show the bifurcation required. It was submitted that in terms of the works performance certificate the EM & I component is of Rs.11,16,32,168/-, however, the certificate does not does not give any bifurcation of what part of the Rs.11 crores, is spent after automation and control system. It was submitted that what is required to be taken into consideration is the automation and control component and the same cannot include anything and everything; and therefore, on the basis of the above certificate, the Consultant would not have been in a position to cull out break up of automation, which break up was required.

6.7 As regards the contention regarding the appointment of the petitioner - company as consultant is concerned, it was pointed out that the petitioner -company was appointed as a purely technical consultant. It was submitted that the second respondent, undoubtedly, does not have requisite qualification as prescribed in the tender document; whereas the petitioner - company which is duly qualified has been arbitrarily excluded.

6.8 It was submitted that no explanation has come forth on the part of the SMC for arbitrarily including an additional condition, whereby the experience of sub-contracting is excluded. However, the court can examine as to whether or not there is any justification and in absence of any justification, the decisions on which the reliance is placed on behalf of the SMC, will not come to their aid. It was, accordingly, urged that the petition requires consideration and deserves to be allowed.

7. Before adverting to the merits of the case, it may be germane to refer to the precedents cited by the learned counsel for the respective parties.

7.1 In Tata Cellular v. Union of India (supra), the Supreme Court observed that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. In Municipal Corporation, Ujiain v. BVG India Ltd., (supra) the Supreme Court held that the exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. It was further held that it is not open to the court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as, unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the court ordinarily should exercise judicial restraint.

7.2 In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818 , which finds reference in the above decision, the Supreme Court held that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.

7.3 In Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 , which finds reference in the decision of the Municipal Corporation, Ujjain v. BVG India Ltd., (supra), the Supreme Court held that bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. It was further held that exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible.

7.4 In the Silppi Constructions Contractors v. Union of India, (supra), the Supreme Court held thus:

"In contracts involving technical issues the courts should be even more reluctant because most of us in judges 'robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.

20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity."

7.5 The petitioners' case is required to be tested in the light of the principles laid down in the above decisions.

8. In the aforesaid backdrop, the nature of the reliefs claimed in the petition may be adverted to. The petitioners

(i) have challenged the decision/action of the respondent No. 1 - SMC of inviting 2nd Tender vide Tender Notice dated 27th May 2019 with amended qualification criteria in place of the Original Tender Notice dated 7th February 2019; (ii) seek a direction to the respondent No. 1 - SMC to process and finalize the bids received pursuant to Original Tender Notice dated 7th February 2019; and alternatively (iii) seek a declaration that the qualifying criteria of the 2nd Tender Notice dated 27th May 2019 insofar as it excludes the experience under a sub-contract, to be illegal, arbitrary, unreasonable and violative of articles 14 and 19(1)(g) of the Constitution of India; and seek a direction to the respondents to produce the work order issued by the respondent No. 1 - SMC to the respondent No. 2 in pursuance of the second tender and quash and set aside the same.

9. Thus, the first relief claimed is to set aside the decision of the SMC to invite the second tender with amended qualification criteria in place of the original tender notice. The second relief is to finalize the bids received pursuant to the original tender; which has subsequently been scrapped; and the third relief is to hold that the qualifying criteria in the second tender is bad.

10. Adverting to the first relief claimed, while the petitioners have challenged the action of the SMC of inviting the second tender, it has not challenged the disqualification of the petitioner- company under the original tender. Therefore, unless the petitioner - company is technically qualified, there remains only one tenderer in the fray, namely the second respondent. Consequently, in view of the CVC guidelines, it was incumbent upon the SMC to scrap the first tender and re-invite it. Therefore, in the absence of any challenge to the disqualification of the petitioner- company in the technical bid, the relief prayed for vide paragraph 10(a) of the petition is rendered academic. Moreover, the decision to scrap the first tender and re-invite the tender is taken in May 2019. The fact regarding scrapping of the first tender was known to the petitioner when its EMD came to be returned on 21.05.2019; however, at that point of time, the petitioners did not deem it fit to challenge the same. Thereafter, the second tender notice was issued, which, according to the petitioners, came to their knowledge on 27.05.2019, therefore, at that stage also, the petitioners were aware that the first tender has been scrapped. At that point of time, the petitioner - company merely raised some queries in response to the tender notice and neither challenged its disqualification in the original tender, nor the second tender nor participated in the tender process. While the petitioners has not challenged the disqualification of the petitioner- company in the original tender, arguments have been advanced that it has been wrongly disqualified. In the opinion of this court, when the petitioner - company has not challenged its disqualification in the technical bid in the original tender, it is not permissible for the petitioners to challenge the same by merely advancing arguments during the course of hearing, inasmuch in the absence of any relief having been prayed for in this regard, it would not be possible for this court to grant any such relief.

11. Nonetheless, for the sake of examining whether there was any irregularity or illegality in the earlier tender process, the question as to whether the petitioner - company satisfied the eligibility criteria may be examined. Before doing so, it may be noted that the petitioner - company has not challenged the original tender or the terms and conditions set out therein. The record of the case reveals that the petitioner - company has been held to be disqualified on the ground that it does not satisfy the work experience criteria as per the tender requirements. In the evaluation report the Consultant at serial No.40 has observed that the value of the work is okay but project is completed before 01.04.2012. In terms of qualifying criteria provided in the tender conditions, the applicant is required to provide evidence that he has successfully completed similar works within the last seven years, completing on 31.03.2019. Admittedly, the petitioner - company does not meet with this requirement as its project has been completed before 01.04.2012. Therefore, when at the relevant time when the tender notice was issued, the petitioners did not deem it fit to challenge the tender condition, it is not possible to state that there is any legal infirmity in the action of the SMC in holding that the petitioner - company is not technically qualified. The petitioners have contended that the words "ending 31.03.2019" contained in clause (b) of Particular Instrumentation Experience under the Qualifying Criteria which provides that "Experience of having successfully completed similar works during last 7 years ending 31/3/2019 should be either of the following:" are erroneous and that they should actually be "ending 31.03.2018"; however, at no point of time has the petitioner - company raised any query in that regard during the pre-bid meeting nor has it challenged such condition. Under the circumstances, once the petitioner - company did not meet with the requirements of the tender condition, only one bidder, namely, the second respondent who qualified technically, remained in the fray, accordingly, in terms of the CVC guidelines, the SMC was required to re-invite the tender. The SMC, therefore, re-invited the tender; however, with a few changes in the eligibility criteria. The petitioners, therefore, contend that in view of the fact that in the second tender, the eligibility criteria has been changed, it cannot be termed as a re-tender but a new tender and hence, the CVC guidelines would be applicable and the tender of the second respondent being the only qualified tender, could not have been accepted.

12. The petitioners have also challenged the eligibility criteria in the second tender whereby it is provided that experience under sub-contract will not be considered by contending that the eligibility criteria has been amended only with a view to oust the petitioner - company from the tender process and to suit the requirements of the second respondent. In this regard, it may be noted that though in the first tender, there was no such condition excluding experience as sub-contractor; the petitioner - company still did not qualify in the technical bid as it has not successfully completed similar works during the last seven years ending 31.3.2019. In the second tender, there is a similar condition, and even according to the petitioners, for the second tender there is nothing erroneous about providing a condition for successfully having completed similar work during the last seven years ending 31.3.2019 as such tender has been invited in the financial year 2019-20. Therefore, whether or not the eligibility criteria are changed, the petitioner - company would still not qualify in the technical bid as it lacks the requisite work experience. Therefore, any interference at the instance of the petitioners is merely an academic exercise, which would result in only delaying the project. Moreover, insofar as the contention regarding the eligibility criteria having been amended to suit the second respondent is concerned, since the second respondent does no

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t rely upon experience of sub-contract, the change in the conditions does not either harm or help it. 13. It has also been contended on behalf of the petitioners that the second respondent does not meet with the necessary eligibility criteria. Such contention is based on the fact that according to the petitioners, the second respondent does not satisfy the requirements of "similar work" as defined in the tender conditions, which reads thus: "Similar work means "Supplying, Erection, Testing & Commissioning of Automation and Control System which includes PLCs, Instruments, Analysers, Mechanical/ Electrical Equipments like Valves/ Actuators etc., SCADA Software and telemetry (Wireless transmission) for the Water supply system / Water Treatment Plant or Sewage network / Sewage Treatment Plant should be in operation for a period of one year"." 13.1 In this regard reference may be made to the evaluation report of the Consultant, wherein, reference has been made to the work executed for the Kulgoan Badlapur Municipal Council, which indicates that the escalated value has been computed at Rs.25.8214 crores and according to the Consultant, meets with the experience for such tender. 13.2 A perusal of the break-up given in the certificate issued by Kulgoan Badlapur Municipal Council shows that the second respondent has executed EM & I work of Rs.11,16,32,168/- in the construction of Sewage Pumping Stations and EM & I work of Rs.10,18,39,205/- for the SBR related equipments for the STP plant. Thus, the total EM & I work comes to Rs.21.34 crores and the escalated value is Rs.25.8214 crores. On behalf of the petitioners, it has been contended that EM & l certificate of Rs.11 crores does not give bifurcation of what part of Rs.11 crores is spent after automation and control system, inasmuch as, it cannot include anything and everything; and that, on the basis of the details supplied, the Consultant would not be in a position to cull out break-up of automation. Therefore, this break-up is required. This contention is further based upon the contention that it is only the SCADA component of the work which has to be taken into consideration for the purpose of computing the extent of similar work done. 13.3 In the opinion of this court, the contention that it is only the SCADA component of the work which has to be taken into consideration for the purpose of computing the extent of similar work done, is misconceived and de hors the record, inasmuch as, such contention does not find support in the definition of "similar work" as defined under the eligibility criteria conditions which includes within its ambit supplying, erection, testing & commissioning of automation and control system which includes PLCs, instruments, analysers, mechanical/electrical equipments like valves/ actuators etc., SCADA software and telemetry (wireless transmission) for the water supply system / water treatment plant or sewage network / sewage treatment plant. Evidently, therefore, the expression "similar work"envisages other components other than SCADA software and telemetry also and is not limited to the SCADA component of such work done. 13.4 Moreover, as to what is the scope of the definition of "similar work" as defined in the tender conditions, is a purely technical question and is, therefore, best left to the experts in the field. As held by the Supreme Court in The Silppi Constructions Contractor v. Union of India (supra), bidder's expertise and technical capability and capacity must be assessed by the experts. In contracts involving technical issues the courts should be even more reluctant because most of the judges do not have the necessary expertise to adjudicate upon technical issues beyond their domain. As laid down in the judgments cited above, the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the Government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 13.5 Therefore, when the Consultant who is an expert in the field, has found the second respondent to be technically qualified, this court would not sit in appeal over the wisdom of the expert and substitute its own opinion in a matter which is purely technical in nature. 14. Insofar as the contention that the second tender is a fresh tender and not a re-tender is concerned, a perusal of the tender documents shows that essentially the scope and ambit and nature of the contract remain the same. Except for a few minor changes in the eligibility criteria, which according to the SMC have been made to bring it in consonance with the normal practice/policy of the Corporation, there are no major changes in the tender conditions so as to term it as a new or fresh tender. Under the circumstances, the contention that in view of the change in eligibility criteria, the second tender should be considered to be a new tender and action should be taken accordingly, therefore, does not merit acceptance. 15. It has been contended on behalf of the petitioners that the petitioners have amended the petition to challenge the disqualification of the petitioner- company and the qualification of the second respondent; and that such challenge has to be read along with the grounds of challenge and that even the rejoinder becomes relevant when the documents are coming on record during the pendency of the petition. According to the petitioners a hyper technical approach of reading the prayers in isolation is not permitted and that, if the prayers are read with the rejoinder, the reliefs prayed for are adequate to support the two fold prayers namely: (i) to direct the SMC to pursue the first tender by considering the petitioner - company to be technically qualified; and (ii) if they want to proceed with the second tender, the terms and conditions are irrational and consequently it was not possible for the petitioner - company to participate. In this regard, it may be noted that after the petitioners obtained the requisite documents under the RTI Act, they have sought amendment of the petition; however, even at that stage, the petitioners have not thought it fit to challenge the disqualification of the petitioner - company or the scrapping of the original tender. This court is, therefore, of the considered view that in the absence of any such relief having been prayed for in the petition, merely on the basis of submissions advanced during the course of hearing of the petition, the petitioners are not entitled to claim any additional reliefs. 16. Besides, even on merits, no case has been made out for grant of such reliefs, inasmuch as, as per the eligibility criteria provided in the original tender, the petitioner - company did not technically qualify; and insofar as the second tender is concerned, even without the amended eligibility criteria, the petitioner - company does not technically qualify. Therefore, any interference in the tender process at the instance of the petitioners would be an exercise in futility and would serve no purpose and would only result in delaying the project, which considering the nature of the project, is clearly in public interest. 17. Another aspect of the matter is that while the petitioners were aware of the changed eligibility criteria in the second tender, they did not deem it fit to challenge the same at the earliest and were content with making a representation at the pre-bid stage and approached this court only after the work order was issued in favour of the second respondent. It is evident that in view of the time lines set out in the tender notice, the tender process would go on; therefore, there was no reason for the petitioners not to approach this court at the earliest point of time. 18. Adverting to the second relief claimed in the petition, namely to direct the respondent No.1 to process and finalise the bids received pursuant to Original Tender Notice dated 7th Februrary, 2019, this court is of the view that the petition is hopelessly time barred, inasmuch as, the tender has been scrapped and has been re-tendered and the process of re-tendering is already over. Therefore, at this stage, the petitioners cannot expect the clock to be turned back. The petition is, therefore, also barred by delay, laches and acquiescence. 19. The alternative relief prayed for in the petition is to declare qualifying criteria of the second tender notice No.CE/HYD/01/2019-2020 dated 27th May, 2019, insofar as it excludes experience under sub-contract to be illegal, arbitrary, unreasonable and violative of articles 14 and 19(1)(g) of the Constitution of India and to call for the work order issued by the SMC in favour of the second respondent and set it aside. As discussed hereinabove, even if the above condition excluding experience as sub-contractor were not inserted in the second tender, the petitioner - company would still not meet with the technical qualification criteria of having successfully completed similar work in the last seven years. Under the circumstances, examining the issue at the instance of the petitioners would be an exercise in futility. This court, therefore, would not embark upon such an inquiry. 20. In the light of the above discussion, no case has been made out for grant of any reliefs prayed in the petition. The petition, therefore, fails and is, accordingly dismissed. The interim protection granted to the petitioners by virtue of a statement made by the learned counsel for the SMC stands vacated. Notice is discharged with no order as to costs. 21. At this stage, the learned advocate for the petitioners has requested that operation of this judgment be stayed for a period of three weeks so as to enable the petitioners to approach the higher forum. The request is considered and turned down.
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