The limited scope of judicial review in matters relating to award of contracts by the State and its instrumentalities, and the need for public interest to justify court intervention.

JUDGMENT

Shrikant D. Kulkarni, J. - Rule. Rule made returnable forthwith. The petition is taken up for final disposal at admission stage with the consent of the parties.

2. The petitioner, who had participated in a tender process for appointment of Handling and Transport contractor at MSWC, Dondaicha (Wani and Rami Road) for a period of two years issued by the respondent No. 2, whereby his technical bid came to be rejected and same is challenged in the present petition by invoking Article 226 of the Constitution of India.

The factual matrix is as under :-

3. The tender notice was published on 07.05.2020 inviting online tenders from the tenderers for appointment of Handling and Transport contractor at MSWC, Dondaicha (Wani and Rami Road) for a period of two years issued by the Food Corporation of India/respondent No. 2. The last date for submission of tender was 30.05.2020 and tenders were to be opened on 01.06.2020. The estimated value of the contract was Rs. 10,00,00,000/-. The earnest money of Rs. 20,00,000/- and security deposit of Rs. 50,00,000/- was required to be deposited with further clause to furnish bank guarantee to the tune of Rs. 1,00,00,000/- .

4. The qualification conditions were mentioned in clause 03 of the tender document. The tender notice further stipulated certain documents to be submitted by the bidders along with technical bid in respect of Employees Provident Fund returns. However, fresh tenderers were permitted to submit an undertaking that he is a fresh tenderer and EPF code is not applicable to him and he would obtain EPF code if tender is awarded to him and will not default in payment of EPF liabilities. Further clause 09 of the tender notice stipulates the prospective tenderers to submit proof of ESI code number for H & T contracts, whereas clause 10 of the tender notice required the contractors to give an undertaking agreeing to abide by section 11 of the Carriage by Road Act, 2007 and compensate the loss as per the provisions of the tender.

5. According to the petitioner, he had participated in the tender process. There were 11 bidders at the time of technical bid. The technical bids were opened on 01.06.2020. The petitioner raised an objection with regard to the eligibility of 5 bidders namely, A.K. Madan, P.C. Pirot, M/s Ravindra Narayan Chaudhari, S.P. Singhania and Mr Vishal Navale.

6. The technical bid of the petitioner came to be rejected on 10.06.2020 on the ground of insufficient experience. Whereas 5 bidders were approved at technical bid. On the very day, the petitioner has explained his experience as being more than what is required under tender conditions and requested to reconsider his disqualification. On 12.06.2020, respondent No. 2 rejected the representation by stating that petitioner did not meet the eligibility criteria on the grounds other than experience as well. On 10.06.2020, respondent No. 2 opened the financial bids of the qualified tenderers and declared S.P. Singhania/respondent No. 6 as the lowest tenderer, who had quoted 36% more than the SOR, without considering request of the petitioner to reconsider his application, who had quoted 25 % above the SOR.

7. It is contended by the petitioner that rejection of his technical bid at the hands of respondent No. 2 is arbitrary, discriminatory, unjust and violative of Article 14 of the Constitution of India. The petitioner was satisfying all the eligibility conditions and criteria and he has quoted lowest rate, even then, he has been disqualified only to favour respondent No. 6 at the cost of the public interest. According to the petitioner, awarding tender to respondent No. 6, who had quoted 36 % more than SOR ,would cause loss of Rs. 70-75 lakhs to the public exchequer. Therefore, the petitioner has prayed to quash the impugned decision/order rejecting his technical bid coupled with the other prayers.

8. We have heard Ms Pradnya Talekar, Advocate for petitioner, Mr A.G. Talhar, Assistant Solicitor General for respondent No.1