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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, Kamal Khata, JJ.
Valuable Edutainment Private Limited - Appellant
Vs.
Municipal Corporation of Greater Mumbai (M.C.G.M., a Public Body) & Ors. - Respondent
Writ Petition Lodging No.23311 of 2022
Decided On : 16-09-2022
TENDER - EVALUATION - WRIT OF CERTIORARI - WRIT OF MANDAMUS - ESTOPPEL - CORRIGENDUM - TECHNICAL BID - FINANCIAL BID - MARKING PATTERN - TRANSPARENCY - PUBLIC INTEREST - JUDICIAL REVIEW - PUBLIC EXCHEQUER - ARTICLE 226 OF THE CONSTITUTION OF INDIA - PRINCIPLE OF LAW.
Fact of the Case:
The petitioner, a bidder in a tender process for the supply, installation, testing, commissioning, operation, and maintenance of virtual classrooms for virtual training centers and studios for schools, filed a petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash and set aside the evaluation of bids in favor of the respondent and a writ of mandamus for a declaration that the respondent was wrongly declared as the successful bidder and that the petitioner was entitled to be declared as the successful bidder.
Finding of the Court:
The court held that the petitioner was estopped from challenging the tender process, including the selection of the respondent as the successful bidder, as the petitioner had participated in the entire tender process without objection and had submitted various documents according to the rescheduled date convened to all the bidders by the Municipal Corporation by issuing a Corrigendum. The court also held that the Municipal Corporation had the right to carry out amendments in the bid document before the deadline for submission of bids and that the Corrigendums issued by the Municipal Corporation were valid. The court further held that the petitioner had not made out any case for interference with the tender process or with the decision of the Municipal Corporation to declare the respondent as the successful bidder and declaring the respondent as L1.
Issues: 1. Whether the petitioner was estopped from challenging the tender process and the selection of the respondent as the successful bidder? 2. Whether the Municipal Corporation had the right to carry out amendments in the bid document before the deadline for submission of bids? 3. Whether the Corrigendums issued by the Municipal Corporation were valid? 4. Whether the petitioner had made out a case for interference with the tender process or with the decision of the Municipal Corporation to declare the respondent as the successful bidder and declaring the respondent as L1?
Ratio Decidendi: 1. The petitioner was estopped from challenging the tender process and the selection of the respondent as the successful bidder as the petitioner had participated in the entire tender process without objection and had submitted various documents according to the rescheduled date convened to all the bidders by the Municipal Corporation by issuing a Corrigendum. 2. The Municipal Corporation had the right to carry out amendments in the bid document before the deadline for submission of bids under Clause 4.7 of the Tender Document. 3. The Corrigendums issued by the Municipal Corporation were valid as they were issued in accordance with Clause 4.7 of the Tender Document. 4. The petitioner had not made out a case for interference with the tender process or with the decision of the Municipal Corporation to declare the respondent as the successful bidder and declaring the respondent as L1 as the petitioner had not demonstrated any mala fides or arbitrariness on the part of the Municipal Corporation and the Municipal Corporation had followed the entire process in a transparent manner.
Final Decision: The petition was dismissed.
JUDGMENT :
R.D. Dhanuka, J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioner prays for writ of certiorari for quashing and setting aside the evaluation of bids invited pursuant to the Bid Notification No.7200025560 published by the respondent nos.1 and 2 in favour of the respondent no.3 and against the petitioner.
2. The petitioner also seeks a writ of mandamus for a declaration that the respondent no.3 has been wrongly and unfairly declared as the successful bidder/lowest bidder and that the petitioner is entitled to be declared as the successful bidder/lowest bidder and that the petitioner is eligible for being awarded the contract/work order pursuant to the said Bid Notification. Some of the relevant facts for the purpose of deciding this petition are as under :-
3. On 18th January 2022, the respondent no.1 Corporation floated an E-Tender vide Bid Notification No.7200025560 for “Supply, Installation, Testing, Commissioning, Operation and Maintenance of Virtual Classrooms for Virtual Training Centres (VTC) & Studios for the respondent no.1 Schools for five years on VSAT (very-small-aperture terminal) Technology.” The petitioner purchased the said tender document on 18th January 2022 and created their Vendor ID on the online portal of the respondent no.1.
4. The pre-bid Meeting was scheduled on 25th January 2022 and was re-scheduled to 28th January 2022. The petitioner and the respondent nos.3 to 5 participated in the said pre-bid meeting and sought clarifications on various issues pertaining to the said tender. The petitioner raised about 27 queries by seeking information and clarification.
5. On 24th January 2022, 4th February 2022, 21st February 2022, 8th March 2022, 25th March 2022, 12th April 2022 and 12th April 2022, the respondent no.1 issued 7 Corrigendums respectively thereby rescheduling the pre-bid meeting and date for opening of financial proposals. On 4th May 2022, the respondent no.2 issued Corrigendum VIII providing various clarifications sought by the respondent nos.3 to 5 and other bidders. According to the petitioner, the respondent no.1 also inserted a new clause in the “Technical Evaluation Criteria” in the said Corrigendum-VIII.
6. On 11th May 2022, the petitioner deposited an amount of Rs.1,82,91,500/- by way of Earnest Money Deposit (EMD) through an online payment portal of the respondent no.1. It is the case of the petitioner that on 13th May 2022, the petitioner in compliance of the said submissions, successfully uploaded and submitted packets ‘A’, ‘B’ and ‘C’ online as per clause 4.14 of the said Tender without facing any difficulties. It is the case of the petitioner that apart from the petitioner, there were two other prospective bidders who had submitted their bids without any technical malfunction or error before the due date i.e. 13th May 2022 upto 4.00 p.m.
7. It is the case of the petitioner that on 13th May 2022, just about 2 hours prior to closing time of the submission of bid, a Corrigendum-IX came to be issued by the respondent no.1 thereby extending the date and time of the bid submission. The same was rescheduled to 18th May 2022 by 4.00 p.m. It is the case of the petitioner that the said Corrigendum-IX was uploaded on the portal by the respondent no.1 Corporation only on 13th May 2022 at 1.42 p.m. when the respondent nos.3 to 5 had already uploaded the requisite Tender Documents consisting of Packets ‘A’, ‘B’ and ‘C’.
8. It is the case of the petitioner that the respondent no.3 did not submit bid till 4.00 p.m. on 18th May 2022 which was the extended date and time for submission of bid as per Corrigendum-IX and cited some technical malfunction and error in uploading the bid. On 16th May 2022, the respondent no.3 deposited its EMD amount. It is the case of the respondent no.3 that on 17th May 2022, the respondent no.3 uploaded packet ‘A’. On 18th May 2022, the respondent no.3 could not upload their packets and sent an e-mail to the respondent no.1 pointing
The powers of the Writ Court under Article 226 of the Constitution of India are not to carry out the process of re-valuation of the marks granted by experts after considering various technical aspect....
The main legal point established in the judgment is that the Courts should exercise restraint in interfering with tender matters, and their intervention should be limited to preventing arbitrariness,....
Judicial review of tender processes is limited to ensuring fairness and transparency. Tendering authorities may correct inadvertent errors in technical evaluations during the stipulated process windo....
Judicial review in public procurement is limited; courts refrain from interference unless clear evidence of arbitrariness or bad faith is established.
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