The main legal point established in the judgment is that the tender process must adhere to the prequalification criteria, and any deviation or deletion of essential terms at the end of the process is against the principle of transparency and fairness.

R.M. Borde, J.

1. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.

2. The petitioner is a Company incorporated under the Companies Act having its registered office at Jalgaon. The Company is engaged in manufacturing of plastic pipes and executes contracts of providing water solutions and water supply installations, etc. Petitioner-Company participated in the tender process initiated by Jalgaon Municipal Corporation for execution of water supply scheme under ‘Amrut Abhiyan Yojana’.

3. Tender notice bearing No.480/201617 was floated by the Commissioner of Jalgaon Municipal Corporation on 23.09.2016. The tender work is valued at Rs.1,91,86,54,993/-. The Municipal Corporation invited online tenders, schedule of which was published on the web-portal of the Corporation and was made available from 23.09.2016 onwards. The time of completion of contract was 24 months including Monsoon, commencing from the date of issue of work order. There were three participants in the tender process including the petitioner.

4. According to the petitioner, bid offered by Respondent No.5 is non responsive and Respondent No.5 is not eligible to participate in the process of tender and as such, seeks declaration to that effect. The petitioner also prays for issuance of direction to Respondents No.1 and 2 to award the tender work in his favour and not to award the tender work in favour of Respondent No.5. It is informed that during pendency of this petition, by a communication dated 03.04.2017, the State Government has communicated its approval to the decision of the Technical Committee to approve the tender offer of Respondent No.5 and issue directions to complete the process of execution of agreement with Respondent No.5. Copy of the tender document is annexed at ExhibitA to the petition.

5. Clause 6 of the tender prescribes prequalification criteria. The firm/contractor, eligible to participate in the tender process, should be registered with “MJP” (Maharashtra Jeevan Pradhikaran) in Class-I or registered with CIDCO/MIDC or any other Government Department in India in equivalent class of MJP. It is provided that the agency shall have experience of successful completion and commissioning of the works listed in the said Class with Government/Semi Government/Corporation or equivalent organization. The experience of each work should be under single agreement. The relevant clauses, in respect of which much emphasis has been led, are clauses relating to bid capacity, net worth and collaboration/joint venture. Those are as below:

Bid capacity :

Bidding capacity of contractor for completion of work will be decided by the following formula:

Bidding capacity = (2 NA – B)

Where -

A = Maximum value of engineering works executed by the contractor in any one year, during the last three years, upgraded to present year, (i.e. tender accepted year) by the formula given below:

= {1+(WPI present - WPI Max. value years)} WPI Max. value years

X Maximum value of civil mechanical engineering work executed.

Where WPI present: Wholesale price index of the month and year in which tender is invited.

WPI Max. value year:Average wholsesale price index of the year in which the max value of the engineering work executed.

N = Number of year prescribed for completion of the works for which tenders is invited. For this work, this shall be considered as three years.

B = Value of existing commitments of works to be completed during the next three years.

Since all the data is pertaining to the contractors own performance, the contractors are requested to provide its bidding capacity for this work by furnishing the calculations and supporting documents duly certified by chartered accountant to prove its contentions along with the application for issue of tender form.

(i) The statement showing the value of existing commitments of ongoing works during next three years for each of works in the list should be counter signed by Engineer-in-cha