Point of Law: It is settled principle of law that Courts should ordinarily not interfere in matters of tenders unless substantial public interest is involved or the transaction is mala-fide.

JUDGMENT :

S.G. DIGE, J.

1. Rule. Rule made returnable forthwith. With consent of the parties taken up for final hearing at admission stage.

2. The petitioner has challenged the impugned communication dated 31st December, 2021 issued by the respondent no. 2-Superintending Engineer, Osmanabad, whereby it has been communicated to the petitioner that the bid of the petitioner in respect of tender of improvements and widening of Ahmedpur-Belur to MSH-6 road, MDR-24, Km.0/00 to 13/500, Tq. Ahmedpur, Dist. Latur has not been admitted by the Committee. Petitioner also prays that petitioner’s tender be admitted and direction be given to open financial bid of petitioner. The respondent no. 1 is the State of Maharashtra through its Secretary for Public Works Department, Mantralaya, Mumbai, the respondent no. 2 is the Superintending Engineer, Osmanabad, who has passed the impugned communication. The respondent no. 3 is the Executive Engineer, P.W.D. No. 2, Latur. The respondent nos.4 and 5 are the tenderers, who have also filled in their respective tenders along with the petitioner.

3. Brief facts of the case are as under:

The petitioner is a partnership firm. Public Works Department, Latur (for short, “PWD Department”) had invited E-tender for the work of improvements and widening of Ahmedpur-Belur to MSH-6 road, MDR-24, Km.0/00 to 13/500, Tq. Ahmedpur, Dist. Latur (for short “Tender work”). The estimated costs of the tender work is Rs. 3,20,87,498/-. The petitioner filled in the tender form. Along with the petitioner, other three Contractors also filled in their tender forms. As per the tender process, the PWD Department has constituted a Committee of five members for opening the envelope No. 2 of E-tender notice no. 4 of 2021-2022. The petitioner’s highest turn over was for the year 2017-18. Instead of taking turn over of the year 2017-18, the respondents took turn over of 2019-2020 only with a view to see that the petitioner does not qualify the tender process and accordingly the authorities have communicated that the petitioner’s bid has not been admitted by the Committee. Said communication is under challenge.

4. Heard learned Senior Counsel for the petitioner, learned Additional Government Pleader for the respondent/State and learned counsel for respondent no. 5.

5. It is the contention of Mr. V.D. Hon, learned Senior counsel that the petitioner’s firm has vast experience of carrying out the public works allotted to it from time to time. The petitioner firm had submitted tender form along with all details as per clause (xi) and (g) of the tender form. The tender form filled in by the petitioner is contained the bid capacity for last five years i.e. 2016-17 to 2020-21. The petitioner in pursuant to clause (g) of the tender document has valued the bid capacity as per the format. The maximum turn over of the petitioner firm was for the year 2017-18 i.e. Rs. 912.75 Lacs and applying the factor 1.33, it comes to Rs. 1213.95 Lacs. Accordingly, the petitioner has calculated the bid capacity and valued bid capacity of Rs. 478.295 Lacs and submitted the same along with tender form.

6. Learned Senior counsel further submits that the five members Committee has verified the tender document submitted by the petitioner and has displayed the check list on the E-tender website of P.W.D. Department. As per the said check list, the tender of the petitioner found to be complete in all respect and the work of the petitioner has been duly satisfied. However, while valuing the bid capacity of the petitioner, the Committee has erroneously taken into consideration the turn over of the year 2019-20 and the certificate of Chartered Accountant for financial year 2019-20 with turn over of Rs. 909.38 lacs. But as per the calculation, total value of the work done in the financial year 2019-20 as per the certificate of PWD Department and PMGSY Latur is Rs. 911.42 Lacs, which is greater than the turn over. The authorities have valued the turn over for the year 2019-20 t