The authority of the tendering body to determine the terms and conditions of the tender, the limited scope of judicial review in tender matters, and the principle of judicial restraint in administrative action.

JUDGMENT

Sandeep V. Marne, J. - Rule. Rule made returnable forthwith. By consent of parties, Petition is heard finally.

2. Petitioner assails communication dated 30/09/2021 rejecting his technical bid submitted in pursuance of Request of Proposal for appointment of transporters for transporting food grains and other essentials (RFP). Petitioner has also sought a declaration to hold him eligible in technical scrutiny and to consider his final bid. Petitioner also challenges tender condition No. QC-6 in clause 4 of the RFP, so also clause 5.1 of the Government Resolution dated 15th January, 2021 by reading it down to make it sustainable in law.

3. Facts of the case, in a nutshell, are that the State Government through the Department of Food, Civil Supplies and Consumer Protection issued RFP on 26/08/2021. The scope of work envisages two stages viz. (I) Stage-I - Transportation of food grains from godowns of Food Corporation of India to District Government Warehousing Godowns and (ii) Stage-II - Transportation of food grains from District Government Warehouses to Taluka Fair Price Shops. Clause 4 of the RFP provides for eligibility criteria. Condition No. QC-9 of clause 4 provides that the bidders shall be bound by the all terms and conditions of RFP and also of Government Resolution dated 15/01/2021.

4. RFP has been issued in pursuance of Government Resolution dated 15/01/2021 laying down guidelines for entering into contracts for transportation of food grains and other essentials. Paragraph No. 5 of the Government Resolution provides for the eligibility terms and conditions to be specified in the tender.

5. Petitioner submitted his bid in pursuance of RFP under strength of his experience inter alia of work of transportation of food grains in Beed district during the period 2015-16 to 2016-17 under a similar contract. Petitioner submitted his bid for Pune district. The technical bids were opened and admitted for technical evaluation on 16/09/2021. By e-mail dated 16/08/2021 petitioner was called upon to cure the defects which included the defect of experience not being found meeting the tender condition. Another letter dated 27/09/2021 was issued by the Desk Officer for curing the said defects. Petitioner offered his explanation to the queries by his communication dated 27/09/2021. Petitioner's technical bid, however, came to be rejected on account of he not possessing the requisite experience, both in stage-I and stage-II and the decision was conveyed vide letter dated 30/09/2021.

6. Petitioner has filed present petition challenging the rejection of his technical bid. When petition came up for admission on 5th October, 2021, this court directed it to be tagged with Writ Petition No. 6199 of 2021 in which interim order was passed directing respondents not to proceed further in pursuance of the RFP for 07 districts including Pune district. That interim protection has been continued from time to time and continues to operate till date. In view of the interim order passed by this Court, the respondents have not opened final bids, nor have not issued work orders in respect of Pune district.

7. Appearing for petitioner, Ms. Talekar the learned counsel would submit that condition no. QC-6 of clause 4 of RFP is not in consonance with clause 5.1 of the Government Resolution dated 15/01/2021. She would submit that in clause 5.1 of the Government Resolution, bidders were required to possess experience to the extent of 33% of total transportation work executed in past 3 years in the district, which can be cumulative experience of a bidder for 5 years. She would submit that clause 5.1 of the Government Resolution nowhere provide such experience of 33% should be in respect of 1 year alone. As against this condition in clause 5.1, respondents erroneously included condition No. QC-6 in RFP requiring the work experience as per district sheet in 1