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2000 Supreme(Bom) 542
IN THE HIGH COURT OF BOMBAY
B.P. Singh, C.J. S. Radhakrishnan, J.
Gammon India Ltd. others.... Petitioners.
Versus
Brihanmumbai Municipal Corporation others... Respondents.
Writ Petition No. 1493 of 2000, decided on 20-7-2000 11-8-2000.
Advocates appeared :
Aspi Chinoy with Milind Sathe and H.N. Thakore i/b Thakore Jariwala Associates, for the petitioners.
C.J. Sawant with Ms. N.V. Sanglikar, for B.M.C.
R.A. Kapadia with D.J. Khambatta i/b Mulla Mulla Craigie Blunt Caroe, for respondent No. 4.
Headnote:Article 226-Non-responsive Of tender- The main ground of the petition is that the tender submitted by the petitioners has been held to be non responsive by the expert body in absence of any allegations of malice, mala fide intention or unfair act of the decision taking body of the corporation acting on the advice of the expert body, there seems no reason for justifying the interference by the Court under Article 226 of the Constitution.-Having considered the submissions urged before us, we are of the considered view that no interference by this Court is called for. As noticed by us, the tender document was prepared by an expert body and the tenders were also evaluated by the same expert body which has the approval of the Tender Committee, the Municipal Commissioner and the Standing Committee of the Municipal Corporation Counsel for ,the Respondents are justified in placing reliance on the decision of the Supreme Court in the case of Raunaq International Ltd. v. I.V.R. Construction Ltd. and others, 1999 (1) Supreme Court Cases 492 : 1999 (1) All MR 634 (sq, and submitting that this is not a case where in mala fide has been alleged against any person. Nor is there any allegation of any collateral motive for awarding the contract to Respondent No.4. The only ground of challenge is that the tender submitted by the Petitioners has been held to be non-responsive by the expert body. In the absence of any allegation of malice, and in view of the reasons given by an expert body, there is no justification for interference by this Court. Relying upon the observations made in the aforesaid judgment, it is submitted that when an evaluation committee of experts is appointed to evaluate the offers, the expert committees special knowledge plays a decisive role in deciding which is the best offer. The award of the contract is essentially a commercial transaction and even if the contract is awarded by a public body or the State, the considerations which are paramount are commercial considerations.
On a consideration of the terms and conditions, the specifications, etc., it appears that the work on the tunnel has to begin from two ends simultaneously, and for this, two boring machines have to be employed. Apparently, if the two boring machines having different bore diameters are employed the tunnel would not be of uniform specification and diameter. Moreover, the works included, construction of two rock tunnels, 3.6 metre bored diameter and concrete lined to 3 metre finished diameter. It is, therefore, apparent that the contract had to employ TBMs which could bore the tunnels of the required diameter of 3.6 metres. In fact, it is clarified that each tunnel is to be bored used "the same two modem full face rock tunnel boring machines simultaneously". It, therefore, appears to us that not only two TBMs were to be used simultaneously, by the contractor has to use the same two modem full face rock tunnel boring machines. It, therefore appears to us that not only two TBMs were to be used simultaneously, but the contractor has to use the same two modem full face rock tunnel boring machines. It, therefore, follows that the two machines to be employed on both the sides must be of the same dimension. The specifications required the boring of tunnels of 3.6 metre bored diameter and, therefore, the Petitioners are not justified in saying that it did not make a difference if they bored one of the tunnels of a larger diameter and then reduced the same by concrete lining so as to give three metre finished diameter tunnel Respondent No.4 has given technical reasons why this could not be permitted. We are not in a position to test the correctness of the consequences that may follow if a larger tunnel is bored, that is, more than 3.6 metres diameter, but the consultants as expert body, must be presumed to be aware of such consequences. The said expert body having come to the conclusion that the tender of the Petitioners was not responsive, we find no reason to interfere with the con- elusions reached by it and approved by the other bodies culminating in the approval by the other bodies culminating in the approval granted by the Standing Committee of the Respondent-Corporation. There is not even an allegation that the consultants did not act fairly. Nor is there any allegation that any of the other bodies which considered the recommendation of the consultants had reasons to act unfairly against the Petitioners and were inclined to show a favour to Respondent No.4.
Having considered all aspects of the matter, we are not in a position to say that the decision taken by the Municipal Corporation, based on the advice of experts is either arbitrary or perverse. There being allegation of mala fides against the consultants or against any member of the Committees that subsequently considered the recommendation of the consultants, there appears to be no reason justifying interference by this Court m exercise of writ jurisdiction. These are the reasons for which we dismissed the Writ Petition preferred by the Petitioners by our order.
2. Petitioner No. 1 claims to be a company incorporated under the Companies Act, 1956 and engaged in the business of construction, building activities and other allied specialised works, having to its credit successful completion of several prestigious projects. Petitioner No. 2 is a German company which has extensive experience, and has developed expertise, in civil construction work including boring tunnels and other allied activities. Petitioners No. 1 and 2 have formed a consortium for the tender in question called "Gammon Dywidag Jala Vitaran Consortium". Petitioner No. 3 is a Director of petitioner No. 1, and represents Petitioners Nos. 1 and 2 for the purposes of the consortium.
3. Respondent No. 1 herein is the Brihanmumbai Municipal Corporation while respondent No. 2 is the Municipal Commissioner. Respondent No. 3 is an officer of respondent No. 1 in-charge of Water Supply Schemes in the city of Bombay. The 4th respondents are a limited company whose tender has been accepted by respondent No. 1-Corporation and in whose favour the contract has been awarded notwithstanding the fact that its bid is higher than that of the petitioners by Rs. 32 lacs.
4. At the threshold, we may notice that the tender of the petitioners has been excluded on the ground of it being non-responsive, since the tunnel boring machines owned and possessed by the petitioners and intended to be used by them, as declared by them, is not of the requisite specification for boring a tunnel of 3.6 meter diameter.
5. A few facts, which are not in dispute, may first be noticed:---
By its invitation for bids (IFB) dated 12th August 1999, respondent No. 1-Corporation invited sealed bids on item rate basis for construction and completion of the aforesaid reinforced concrete lined tunnels of 3 metres finished diameter. Clause 2 of the IFB reads as follows:---
"2. The Municipal Commissioner for and on behalf of BMC invites sealed bids on item rate basis for construction and completion of approximately 5.6 Kms and 6.35 Kms long, reinforced concrete-lined tunnels of 3 metres finished diameter, from Bhandup Complex to Malad Hill Reservoir (MHR) and from MHR to Charkop Via Liberty Garden (LG) respectively, using the same two full face rock tunnel boring machines including construction of shafts about 50-80 metres deep using controlled blasting technique, and allied works within Brihanmumbai limits. The bidding is kept open to all the contracting firms, who meet the eligibility requirements and fulfill the qualifying criteria stipulated in the bid document. It may specifically be noted that the tunnel boring and subsequent construction activities will have to be initially commenced at both the end shafts of Bhandup-Malad tunnel simultaneously with the use of two TBMs and subsequently at LG and Charkop shafts of Malad-Charkop tunnel to meet the contract period requirement."
Clause 1.2 of the tender documents prescribes Location of Works as follows:---
"1.2 Location of Works
The works include construction of above two rock tunnels, 3.6m bored diameter and concrete lined to 3m finished diameter each and about 5.6 Km and 6.35 Km long respectively between the end shafts. Each tunnel is to be bored using the same two modern full face rock tunnel boring machines (TBMs) simultaneously. The TBMS shall be first deployed at the end shafts of the B-M tunnel for simultaneous working. On completion of bor
