2010 Supreme(Bom) 1575

2011 (3) ALL MR 682
High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. MOHIT S. SHAH & THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD
Reliance Infrastructure Limited & Others
Versus
Maharashtra State Road Development Corporation Limited & Others
WRIT PETITION NO.1542 OF 2009
Decided on : 28-10-2010

Headnote:Constitution of India - Article 226-Contract Act, 1872, Section 10-Contract-Toll Collection at Flyovers-Rejection of petitioner’s bid-Non-satisfaction of eligibility criterion by petitioner-Question of comparing financial bids arises between eligible bidders-Petitioner not fulfilled conditions of eligibility-Rejection of bid not illegal.-Court is of the view that MSRDC was justified in coming to the conclusion that the bid submitted by the petitioners was not responsive on the ground that it did not meet the eligibility criteria. That apart, upon the communication of ineligibility by MSRDC, the earnest money deposit was withdrawn and the financial bid was returned. The plea which was urged before the Court at the hearing was that if the financial bid of the petitioners were to be opened, it would be found to be more favourable, in terms of the period of concession, than the bid which has been accepted. The submission is lacking in substance. Such an argument would have been open to a bidder who is found to be eligible and who had a grievance about the award of the contract. A bidder who does not meet the eligibility criteria, cannot complain of the award of the contact on the ground that its financial bid offers betters terms. The question of comparing financial bids arise as between bidders who are eligible. The bid submitted by the petitioners was non- responsive since the petitioners did not fulfill the conditions of eligibility. There is hence no merit in the submission.

       Constitution of India - Article 226-Contract Act, 1872, Section 10-Contract-Toll Collection at Flyovers-Rejection of petitioner’s bid-Petitioners shown turnover included Delhi Toll Collection Contract-Another bidder also claimed experience off Delhi Contract-Exclusion of turnover from Delhi contract not satisfying eligibility criterion of minimum turnover of petitioner-Rejection of bid of petitioner as non-responsive on this ground not suffers from any illegality.-The eligibility criteria specified in clause 5.52.1 of the bid document stipulated a requirement of a minimum annual turnover in any one of the last three years as per the audited balance-sheet/profit and loss account for a period starting not earlier than 31st March, 2008. In the case of a consortium, the turnover had to be at least Rs. 1250 million (Rs. 125 crores) for all members taken together out of which, the lead member of the consortium was required to have an average annual turnover towards toll collection of at least Rs. 750 million (Rs. 75 crores). On 13th August, 2009, the petitioners submitted a break up, project-wise of the receipt of toll collection of the lead members, SMS Infrastructure Ltd. For financial years 2007-08 the lead member of the consortium claimed a turnover of Rs. 97.53 crores in order to meet the requirement of a turnover of at least Rs. 75 crores in one financial years. Of this, the lead members claimed a turnover of Rs. 34.45 crores against a toll collection contract at New Delhi. However, it was found that for 2007-08, the work was executed by that lead members of the consortium on behalf of Banas Sands JV. This was clarified by the petitioners in a letter dated 17th August, 2009 . In holding that the bid of the petitioner was not responsive. MSRDC has found that the lead members of the consortium did not satisfy the eligibility criteria of a minimum toll turnover of Rs. 75 crores in one financial years, upon the exclusion of an amount of Rs. 34.45 crores for the Delhi toll contract where the project was executed on behalf of Banas Sands JV. Banas Sands JV is independently a consortium member of the Sadhav Prakash Consortium, which was one of the bidders for the contract in this case. This conclusion which has been arrived at by MSRDC cannot be regarded as perverse. The determination is consistent with the eligibility criteria. The rejection of the bid as non-responsive on this ground does not suffer from any illegality.

       Constitution of India - Article 226-Contract Act, 1872, Section 10-Rejection of bid-Contract-Toll Collection at Flyovers-Eligibility criterion for contract-Experience of operating twenty automated computerised toll lanes under one contract for at least one year-Petitioner’s experience certificate showed period of less than one year-Eligibility criterion not satisfied -Order rejecting petitioner’s bid war-rants no interference.-Clause 5.5.2.2. of the bid documents stipulated as a condition of eligibility that at least one member of the consortium shall have experience of operating a minimum of twenty automated computerized toll lanes under one contract for at least one year. SMS Infrastructure Ltd., the lead member of the petitioner’s consortium, had participated earlier in what is described as a ’short tender’ of twenty six weeks in 2008 floated by MSRDC. In connection with that tender, the lead member had produced a certificate from the Hoogly River Bridge Commissioner in respect of Vidyasagar Setu Toll Plaza which showed that there were eighteen involved in the work under the contract. The counsel appearing on behalf on MSRDC has drawn the attention of the Court to the pre-qualification notice issued by the Hoogly River Bridge Commissioner which was to the effect that toll bars will have to be installed at eighteen toll gates of the toll plaza. Out of the eighteen lanes, one ’up’ and one ’down’ lane had been converted into four lanes dedicated for two wheeler traffic for safety and smooth movement. The position was verified by the consultants appointed by MSRDC in a second Report dated 18th August, 2009, as stated in the affidavit in reply. A site visit was jointly conducted together with the representative of the petitioners on 13th August, 2009, MSRDC has stated in its affidavit-in-reply that in a certificate of October, 2008 submitted by the lead member of the consortium for the earlier tender of twenty six weeks, it had claimed an experience of operating an eighteen lane facility for the Vidyasagar Setu. Later, in a subsequent certificate dated 11th August, 2009, the experience claimed was of twenty lanes. In any event, from October, 2008 until August, 2009 when the fresh certificate of experience was produced, the experience of twenty lanes was for the period of less than one year. The material upon which reliance has been placed by MSRDC before the Court supports the finding of ineligibility of the petitioner’s consortium. This finding essentially turns upon an evaluation of facts by MSRDC. The conclusion which was drawn by MSRDC cannot be regarded as perverse or contrary to the weight of the evidence on record. In the exercise of the jurisdiction under Article 226 of the Constitution, this Court would not be justified in reappreciating a determination of fact based upon which an inference of ineligibility has been drawn.