Back
2018 Supreme(Bom) 1345
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. BORDE, V.M. DESHPANDE, JJ.
ACC India Private Limited and Ors. - Petitioners
Vs.
State of Maharashtra, acting through its Department of Housing at Mantralaya, Mumbai and Ors. - Respondents
Writ Petition (Lodg.) No. 2321 of 2018
Decided On : 30-07-2018
For the Petitioners: Mr. Ravi Kadam, Mr. Malhar Zatakia, Mr. Nilesh Tated and Ms. Saloni Shah I/b. M/s. DSK Legal
For the Respondent: Mr. A.A. Kumbhakoni, Mr. Hemant Haryan, Mr. Akshay P. Shinde and Ms. Akanksha Helaskar, Mr. Venkatesh Dhond, Mr. Vishal Phal, Ms. Manali Patwardhan i/b. Kunal Damle, Mr. R.A. Dada, Mr. Y.P. Dandiwala, Mr. R.K. Satpalkar, Ms. M. Avasia i/b. M/s. Mulla & Mulla & C.B.& C.
The main legal point established in the judgment is the limited scope of judicial review in tender matters, the employer's right to interpret tender documents, and the need to consider public interest in large-scale projects.
Headnote:
Companies Act - Global Tender - 1956 - [2.1.17, 2.1.18] - The court discussed the eligibility criteria for bidding under the global tender issued by MHADA, focusing on the technical capacity and experience required for high rise building construction. The court interpreted the clauses related to technical capacity and experience, emphasizing the need for the bidder to demonstrate the capacity to construct high rise buildings of specified heights. The court also considered the principle of 'ejusdem generis' in interpreting the relevant clauses of the tender document.
Fact of the Case:
The petition relates to a global tender issued by MHADA for a redevelopment project. The petitioner objected to the selection of the respondent as a successful bidder, citing deficiencies in their technical capacity and experience in high rise building construction. The petitioner raised objections after the financial bids were opened, leading to preliminary objections from the respondents regarding the timeliness and eligibility of the petition.
Finding of the Court:
The court found that the petitioner's objections were raised belatedly and did not warrant interference in the tender process. The court emphasized the limited scope of judicial review in tender matters and upheld the decision of the respondent authority in interpreting the eligibility criteria for the tender.
Issues: The issues involved the timeliness of the petitioner's objections, the interpretation of the eligibility criteria for high rise building construction, and the public interest in executing the redevelopment project.
Ratio Decidendi: The court's decision was based on the principles of limited judicial review in tender matters, the employer's right to interpret tender documents, and the need to consider public interest in large-scale projects. The court also emphasized the importance of legal certainty and the doctrine of 'level playing field' in tender processes.
Final Decision: The petition was rejected as devoid of substance and not deserving of favorable consideration, affirming the decision of the respondent authority in interpreting the eligibility criteria for the tender.
R.M. Borde, J.
Heard respective Counsel appearing for the parties. The Petitioner No.1 is a Company incorporated under the Companies Act, 1956 and a subsidiary of Petitioner No.3. The Petitioner is essentially objecting to the summary recorded by MHADA on 14.02.2018 thereby declaring selection of Respondent Nos. 3 to 5 as a successful bidder.
2. The present Petition relates to the global tender issued by MHADA on 03.04.2017 for the work of technical designing (structure, services + infrastructure) co-ordination and construction of rehabilitation/sale/commercial/amenities/any other structure alongwith construction of habitable temporary transit camps, work of onsite/offsite infrastructure and landscaping and performing various co-ordination activities of project and obtaining all relevant permissions and approvals from all concerned authorities, on lumpsum basis for redevelopment project of BDD Chawls on CTS Nos. 1539 and 1540 of Lower Parel Division, Worli, Mumbai. It is informed that in all four bidders submitted their E-bids online. According to the Petitioners, the details in support of their technical capacity and experience in having constructed high rise buildings have been submitted alongwith the certificates in support thereof. On 28.07.2017 the technical bids were called and on 14.02.2018 the Petitioners and the Consortium of the Respondent Nos. 3, 4 and 5 was held eligible during technical evaluation. The financial bids have been opened on 31.05.2018 and the bid offered by Respondent Nos. 3 to 5 was found to be lowest and as such, they have been selected for executing the project. The Petitioners contend that they gathered the information relating to certain deficiencies in respect of the bid offered by Respondent Nos. 3 to 5, more particularly, in respect of the requisite technical capacity and experience of Respondent No. 3, in relation to constructing one high rise building of height not less than 70 meters and atleast 175 meters above the ground level, which according to the Petitioner is incomplete and the construction is on going which has result of rendering Respondent No. 3 technically disqualified and the experience as regards construction of high rise building of atleast one high rise building of 175 meters height cannot be said to have been possessed by Respondent No.3. It would be appropriate at this stage to refer to relevant qualification criteria provided in the tender document. The eligibility criteria is prescribed in the clause 2.1.17. The same is reproduced as under :-
“2.1.17. Eligibility Criteria
To be eligible for bidding hereunder, a Bidder shall fulfill the following conditions of eligibility (the “Eligibility Criteria) :
(A) Technical Capacity : For demonstrating technical capacity and experience (the “Technical Capacity”), the Bidder shall meet the requirements set out below under each category :
I. Real Estate Projects Category : Under this category, the Bidder should have experience of at least 10 years in the development of Real Estate Project* (s) wherein the Bidder should have completed the project in all respect and incurred a cost or received payments over the last 7 years immediately preceding the Bid Due Date to the tune of :
(i) One such project having minimum Construction Cost not less than INR 8,600 crore (Rupees Eight Thousand Six Hundred Crore).
OR
(ii) Two such projects having minimum Construction Cost not less than INR 5,400 crore (Rupees Five Thousand Four Hundred Crore) each
OR
(iii) Three such projects having minimum Construction Cost not less than INR 4,300 crore (Rupees Four Thousand Three Hundred Crore) each.
II. High Rise Building Category : Under this category, the Bidder should have experience in the last 7 years of construction of three high rise Buildings of height not less than 70 meters and at least one building out of which shall be of minimum 175 meters above Ground Level using either Cast in situ concrete technology with system formwork or Pre-cast Concrete tech
