The limited scope of judicial review in tender matters and the importance of upholding essential NIT requirements.

JUDGMENT

M.S. Sonak, J. - Heard learned Counsel for the parties.

2. Rule. The rule is made returnable immediately at the request of and with the consent of the learned Counsel for the parties.

3. The petitioner challenges the decision of the respondent no.2 rejecting the petitioner's technical bid in response to the E-Tender dated 10.12.2021 for urgent up-gradation of all 14 PHE laboratories, including supply of new Instruments/Equipments, Instrument Repairs, Chemicals, apparatus, and Glasswares, CRM Materials under Jal Jeevan Mission for PWD, Goa.

4. From the returns filed, it is apparent that the rejection of the petitioner's technical bid was on the ground that the petitioner had failed to submit the following documents along with his bid:-

(a) Experience certificate stating that the petitioner had executed similar works during the last 10 years, in terms of Clause 4(e).

(b) Declaration in terms of Clause (c) of the eligibility criteria.

(e) Tender specific authorization either from the manufacturer or their authorized dealer as required under Clause (b) of the eligibility criteria.

5. Mr. Padgaonkar, the learned Counsel for the petitioner, submits that the petitioner furnished the necessary experience certificates in Clause 4(e) of the Notice Inviting Tender (NIT). He took us through the certificates on pages 49 to 69 and submitted that these certificates pertained to the supply of laboratory equipment and, therefore, there was compliance with Clause 4(e) of the NIT. He submits that experience in the supply and installation of spectrophotometers was only illustrative, and there was no requirement about three works of supplying such spectrophotometers. He submitted that the employer had misinterpreted the Clauses of NIT and arbitrarily rejected the petitioner's technical bid.

6. Mr. Padgaonkar submitted that the petitioner had not submitted the declaration in terms of Clause (c) of the eligibility criteria prescribed in the NIT, but the petitioner fulfilled this eligibility criterion. He submitted that the NIT did not require the production of such declaration at the time of submitting the bid. The petitioner, bona fide, believed that such declaration had to be submitted at the stage of work order if the employer ultimately accepted the petitioner's bid. He submitted that submission of such declaration was not even an essential term of the NIT, and based upon the same, the petitioner's bid should not have been rejected. He relied on Rashmi Metaliks Ltd. & Ors. V/s. Kolkata Metropolitan Development authority & Ors. (2013) 10 SCC 95 in support of this contention.

7. Mr. Padgaonkar submitted that the petitioner had submitted the necessary authorizations and, accordingly, there was no breach of Clause (b) of the eligibility criteria prescribed in the NIT. He referred to the authorization letters on pages 43 to 46 of the paper book to submit that the approved manufacturers had authorized the petitioner to supply their 'range of products.'

He submitted that since the employer has not considered these authorization letters, there is arbitrariness involved in rejecting the petitioner's bid.

8. Mr. Padgaonkar finally submitted that the petitioner's bid would save the Respondent an amount of almost Rs. 60.00 lakhs. Therefore, the public interest is involved in awarding the work to the petitioner in preference to respondents nos.3 & 4. He relied on the decision of the Hon'ble Supreme Court in Jai Bholenath Construction V/s. The Chief Executive Officer, Zilla Parishad, Nanded & Ors. 2022 LiveLaw SC (542) in support of his contentions.

9. Mr. D. Pangam, learned advocate General appearing for the State/employer, defended the rejection of the petitioner's technical bid on the above three grounds. First, he submitted that the petitioner had furnished experience in the supply and installation of only two spectrophotometers and, therefore, was ineligible in terms of the NIT. Second, he submitted that the furnishing of declaration in terms of Clause (c) o