JUDGMENT :

S.V. GANGAPURWALA, J.

1. Respondent No.1 Brihan Mumbai Electricity Supply and Transport Undertaking (hereinafter referred to as the “BEST”) is engaged in service activity of public passenger transport covering areas in the City of Mumbai and its extended suburbs. On 26th February 2022 Respondent No.1 issued e-tender notice inviting twobid e-tender for operation of Stage Carriage Services for public transport of 1400 (+ 50% variation) Single Decker AC Electric buses with driver

2. In response to the said tender, eight parties including the Petitioner and Respondent No.2 submitted their technical and financial bid. The technical bid of five tenderers including Petitioner No.1 were rejected. Three bidders, including Respondent No.2 were held responsive. Respondent No.2 is awarded the contract pursuant to the said tender. The technical bid of Petitioner No.1 is rejected. Aggrieved by the rejection of the technical bid, the Petitioner filed the instant Writ Petition. During pendency of the Writ Petition, Respondent No.2 is issued with the contract. The Petitioner has also assailed the same.

3. Dr.Abhishek Singhvi, learned Senior Advocate appearing for the Petitioner, during the course of his erudite arguments, put forth the following submissions:

a. The only reason for disqualifying Petitioner No.1 is that though it guaranteed operating range of buses as 200 kms qua Single Decker buses with 80% state of charge (20% reserve left upon running 200 kms in single charge) it added ‘in standard test conditions as per AIS 040’ in its Annexue F and Y.

b. AIS 040 standard is referred by the Petitioner only to inject certainty and uniformity since AIS 040 is the only sole prescribed standard in India for measuring range of a battery operated / electric vehicle. The Petitioner’s bid is compliant with Central Motor Vehicle Rules, 1989 (hereinafter referred to as the “CMVR”) and the Tender conditions. Petitioner No.1’s bid is accepted as “noted and agreed” without any qualification or reference to AIS 040 and the same is part of the substantive tender document. Respondent No.1 ought to have considered this as substantial compliance of essential tender conditions for acceptance of bid. In Section 2 of Schedule-IX (Technical Disqualifications) Tender requires compliance of CMVR. Sr.No.5 of Schedule-III of the Tender requires submission of CMVR type approval at the time of prototype inspection. Same is mandatory as per the Mandatory Technical and Commercial Eligibility Criteria. Rule 124 of CMVR as amended vide Notification dated 13th December 2004 makes it mandatory to test battery operated vehicles as per AIS 040. Rule 144 (iii) of the General Finance Rules (hereinafter referred to as the “GFR”) provides that in all procurements, technical specifications in tender must be based on recognized national standards. GFR applies to Respondent No.1 also. It is submitted that not specifying relevant standards against the technical specifications, contrary to Rule 144 of GFR adds ambiguity and uncertainty in the tender conditions which is impermissible. The office memo referring to FAME (Faster Adoption and Manufacturing of Electric Vehicles)-ii Scheme under Ministry of Heavy Industries specifies for testing of range of battery operated / electric vehicles as per AIS 040. FAME-II is formulated and floated by the Ministry of Heavy Industries and implemented by the Department of Heavy Industries. Respondent No.1 floated the tender with a clear intent to avail subsidy benefit under FAME-II. As per the tender, for subsidy benefits to extend to the operators, compliance with the guidelines of Department of Heavy Industries and FAME-II guidelines become mandatory. The reference to AIS 040 is reasonable, equitable and for ensuring the level playing field in the tender.

c. It is further contended by the learned Senior Advocate that the tender does not prohibit departure from tender conditions. It contemplates departure. A reference is made to Sr.No.15 of Sche