JUDGMENT :

Sandeep V. Marne, J.

The Challenge:

1. Upon being declared L-2 in the tender process, Petitioners seek disqualification of rival bidder declared L-1 (Respondent No. 8). Petitioners challenge the decision of City and Industrial Development Corporation (“CIDCO”) declaring respondent no.8 as technically qualified to participate in the tender process and seek rejection its bid for not meeting mandatory eligibility criteria and technical qualifying requirement under the tender.

Facts:

2. CIDCO proposed to free up some space occupied by overhead power corridor of Maharashtra State Electricity Transmission Company Ltd. (MSETCL) in Kharghar Node of Navi Mumbai with twin purposes of prevention of unauthorised occupation and utilisation of that space for public purposes and for sale of plots. CIDCO therefore decided to undertake the work of conversion of overhead power cables of MSETCL to underground cable system under supervision of MSETCL. On 3rd November 2021, CIDCO published Notice Inviting Bids for carrying out the work of conversion of existing 220kV and 33kV EHV/HT O/H lines of MSETCL and MSEDCL into underground cable system in Sector-5, Kharghar Node (NIB). The estimated cost provided in the NIB was Rs.50,77,79,970.04. Under the NIB, it was permissible for a bidder to collaborate with an Indian cable manufacturer and also with a foreign collaborator. The last date for submission of bids was 3rd December 2021. Petitioners submitted their online bid on 3rd December 2021. Respondent no.8-BNC Power Projects Limited (BNC) as well as one more company, viz. M/s. KEI Industries Limited also submitted their bids. BNC executed Manufacturer Authorization Form with Sterlite Power Transmission Ltd. (Sterlite Power), an Indian cable manufacturer who in turn has collaborated with Taihan Cables and Solutions Company Ltd., (Taihan) a Korean Company, as permissible under Clause 6H of the NIB. Under arrangement proposed by BNC, Sterlite Power would manufacture cable systems of requisite technical specifications at its facility in collaboration with Taihan and BNC would execute the work of laying the cable system. CIDCO opened technical bids on 6th December 2021 and found the three bidders, i.e., petitioners, BNC and M/s. KEI Industries Ltd. to be technically qualified. The technical bids of all the bidders were uploaded by the CIDCO on e-tender portal.

3. Petitioners noticed certain deficiencies in the bid documents submitted by BNC and therefore addressed letter dated 14th December 2021 to CIDCO pointing out such deficiencies. Tender Committee met on 2nd December 2021 and recorded its minutes and held BNC eligible. Upon opening the financial bids, the financial bid of BNC was the lowest and it was shortlisted in L-1 category, whereas petitioners were shortlisted as bidder under L-2 category. Petitioners have filed the present petition challenging the decision of CIDCO in holding BNC as eligible, despite the alleged deficiencies pointed out by them in BNC’s bid. It is the case of the petitioners that in case BNC is disqualified, petitioners being L-2, would be awarded the contract.

4. This Court, by its order dated 12th December 2022, recorded the statement of the learned counsel for CIDCO that the work order shall not be issued till the next date. The said statement has been continued from time to time, in pursuance of which the work order has not yet been issued to BNC.

Submissions:

5. Appearing for petitioners, Mr. Khandeparkar the learned counsel would submit that the respondent no.8-BNC does not fulfill material and essential terms of tender and could not have been held technically qualified by CIDCO. He has taken us through the mandatory eligibility conditions of the NIB under various clauses, particularly Clauses 6 and 7, under which the bidder, manufacturer and collaborator are mandatorily required to meet the criteria stipulated the