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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, Gauri Godse, JJ.
Larsen & Tubro Limited - Petitioner
Versus
Mumbai Metropolitan Region Development Authority (MMRDA) and anrs. – Respondents
Writ Petition (L) No. 12017 & 12023 of 2023
Decided On : 04-05-2023
Tender - Bid Rejection - Work Experience Certificate - [PACKAGE 1 & 2] - [Clause 1.2.7 of Section 1, Clause 3.3.1 of Section 3, Clause 2.2.2.2(iii)(b) of Section 2, Clause 3.14, Clause 3.15] - The court considered the rejection of the petitioner's bid due to the failure to submit separate Work Experience Certificates for both packages. The court found that the interpretation of the tender conditions by the respondents was plausible and that the petitioner had accepted the terms and conditions with full knowledge. The court also noted that the successful bidder was a necessary party to the petition and that no allegations of malafide were made. The court dismissed both petitions.
Fact of the Case:
The petitioner sought a Writ of Mandamus against the respondents to declare the petitioner as the lowest bidder for Package 2 and to quash the rejection of the petitioner's technical bid for Package 1. The respondents had requested additional documents to demonstrate project experience, and upon rejection of the bid, the petitioner filed two writ petitions.
Finding of the Court:
The court found that the rejection of the petitioner's bid was valid as the interpretation of the tender conditions by the respondents was plausible. The court also noted that the successful bidder was a necessary party to the petition and that no allegations of malafide were made. The court dismissed both petitions.
Issues: The main issue was whether the petitioner was required to submit separate Work Experience Certificates for both packages. Additionally, the court considered the impleading of the successful bidder as a necessary party to the petition.
Ratio Decidendi: The court held that the interpretation of the tender conditions by the respondents was plausible and that the petitioner had accepted the terms and conditions with full knowledge. The court also noted that the successful bidder was a necessary party to the petition and that no allegations of malafide were made.
Final Decision: Both petitions were dismissed by the court.
JUDGMENT :
1. Rule. Dr. Sathe, learned senior counsel waives service for Respondent - MMRDA in both the matters. By consent of the parties, both the Petitions were heard together and are being disposed of by a common order.
2. Petitioners in Writ Petition (L) No. 12023 of 2023 have prayed for Writ of Mandamus against the Respondents to declare the Petitioner as the lowest bidder or L-1 bidder in the tender for the project i.e. Package – 2.
3. In so far as Writ Petition (L) No. 12017 of 2023 is concerned, the Petitioner has prayed for Writ of Certiorari for quashing and setting aside the rejection of the Petitioner’s technical bid submitted to Respondent No. 1 in respect of proposal for Package 1. In the alternative, Petitioner has prayed for Writ of Mandamus against the Respondents to withdraw email dated 25th April, 2023 communicating rejection of Petitioner’s technical bid submitted on 6th April 2023. Petitioner has also prayed for a Writ of Mandamus against the Respondent to treat the technical bid submitted by the Petitioner on 6th April 2023 as eligible and open and consider Petitioner’s financial bid submitted on 6th April 2023 in response to said tender.
FACTS IN WRIT PETITION (L) NO. 12017 OF 2023
4. On 14th January 2023, Respondents issued a request for proposal for Package 1 & 2 of the project in question. On 16th March 2023, a common set of deviations for Package 1 and a common set of deviations for Package 2 were issued by Respondent No. 1. On 6th April 2023, Petitioner submitted its technical bids for both the Packages. On 19th April 2023, Respondent No. 1 issued two letters both dated 19th April, 2023 for Package 1 and 2 respectively to the Petitioner inter alia requesting for additional documents to demonstrate different project experience to be qualified for both the packages. On 21st April 2023, Petitioner responded to the said letter and clarified that it has Doha Metro Project experience to establish its technical capacity criteria.
5. On 24th April 2023, Respondent No. 2 requested the Petitioner to remain present at the time of opening of financial bid on 25th April 2023 at 10.00 a.m. It is the case of the Petitioner that on 25th April 2023, Petitioner received an E-mail claiming that the bid of the Petitioner for tender in question had been rejected during technical evaluation by the duly constituted committee for the reason ‘Not eligible’.
6. On 26th April 2023, the Petitioner through their Advocates addressed a letter to the Respondents calling upon the Respondents to forthwith withdraw the decision of rejecting the Petitioner’s technical bid for Package 1 and to treat the technical bid submitted by the Petitioner on 6th April 2023 as eligible and open for the financial bid for Package 1. Since the Respondents did not accept the request of the Petitioner to withdraw the decision to reject the Petitioner’s technical bid for Package 1, the Petitioner filed Writ Petition (L) No. 12017 of 2023. Writ Petition is resisted by the Respondents by filing Affidavit-in-Reply.
FACTS IN WRIT PETITION (L) NO. 12023 OF 2023:
7. On 14th January 2023, Respondent No. 2 issued a ‘Request for proposal for Package - 2’ of the project in question. On 6th April 2023, Petitioner submitted its bid for the project. It is the case of the Petitioner that on 25th April, 2023 upon visiting the e-tender portal for the project, Petitioner realized that it had inadvertently submitted its bid amount inclusive of tax in the column for “rate without tax” and “rate with tax” of the price schedule. Petitioner accordingly addressed a letter to Respondent No. 1 inter alia clarifying that the bid price submitted by the Petitioner in column No. 12 of price schedule is Indian Rupees 6,625,00,00,000/- which is inclusive of all taxes and GST. On 26th April 2023, the Petitioner addressed a letter to Respondent No. 2 contending that Respondent No. 1 had correctly determined the Petitioner as the L1 bidder on the basis of contract price with tax. On 27th April
The interpretation of tender conditions by the respondents is binding, and the petitioner's acceptance of the terms and conditions with full knowledge precludes subsequent challenges.
Judicial review in tender matters is limited to assessing procedural fairness, not the merits of the tender conditions, which are determined by the tendering authority.
The court upheld the tendering authority's discretion in setting eligibility criteria, emphasizing limited judicial review focused on procedural fairness rather than the merits of the decision.
The person claiming justice and equity must come with clean hands.
Judicial restraint is paramount in administrative contract disputes, with equal opportunity granted to bidders for document rectification to avoid discrimination.
The decision-making process of the tendering authority should be respected unless there is mala fide or perversity, and the court should only interfere in tender matters in furtherance of public inte....
The court emphasized the importance of fair and transparent decision-making in tender evaluations, asserting judicial review is warranted when actions of administrative bodies exhibit arbitrariness b....
Judicial review in tender matters limited to arbitrariness or mala fides; courts defer to authority's bid compliance assessment, refusing substitution unless perverse.
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