IMPORTANT POINT
The main legal point established in the judgment is that the disqualification of a bidder must be justified, and an unsuccessful bidder cannot challenge the qualification of other bidders.

JUDGMENT :

VIBHA KANKANWADI, J.

1. Rule. Rule made returnable forthwith. Heard learned Advocates for the appearing parties finally by consent.

2. The petitioner is challenging its disqualification in the technical bid as well as the acceptance of technical bid of respondent Nos. 2 and 3 by respondent No. 1.

3. The petitioner is the manufacturer of specialty food products including the product under the food category 13.5 Dietetic Foods/Foods for Special Dietary Use. It is a company registered under the Companies Act. Respondent No. 1 had invited bids for supply of multi-micronutrient supplement granules to children in the age group of 3 to 6 years at Anganwadi centers in tribal areas as well as micronutrient supplement granules to pregnant and lactating mothers in Nandurbar district. The action on behalf of respondent No. 1 in declaring that the petitioner does not qualify at the time of technical bid and respondent Nos. 2 and 3 are qualified, has been challenged on following grounds:

(1) The act is illegal and contravening the procurement rules of Maharashtra government.

(2) Though the petitioner had uploaded all the documents, they were not properly evaluated and the documents which were to be uploaded by respondent Nos. 2 and 3 were not visible or that facility was disabled. Thus, no transparency has been ensured.

(3) Bid of respondent Nos. 2 and 3 ought to have been rejected as they were not qualifying or complying with the tender terms and conditions.

(3A) Respondent Nos. 2 and 3 do not have any basic licence to manufacture or sell the tender products issued from Indian Food Regulator, namely, FSSAI, which was seen by the petitioner after search on the official website of FSSAI.

(3B) Udyam certificate of respondent No. 2 gives different activity as major activity of respondent No. 2 i.e. trading, that too not in food articles.

(3C) Respondent No. 2 uploaded document claiming exemption in payment of EMD which was wrong.

(3D) Respondent Nos. 2 and 3 do not have past experience of supply of micronutrient supplement granules.

(3E) The GST documents are not proper.

(4) Respondent No. 1 had failed to appreciate that the subject matter involves health of young children and pregnant and lactating mothers and, therefore, ought not to have accepted the deviations from the terms and conditions, rather ought to have followed them scrupulously and, therefore, the petitioner has prayed for issuance of writ against respondent No. 1 for quashing his decision in holding respondent Nos. 2 and 3 qualified for the technical and then to the final bid. Petitioner prays for issuance of writ as against respondent No. 1 directing him to accept the petitioner’s bid, as the petitioner complies with all the terms and conditions.

4. The respondents have not filed say, but tendered the documents across the bar at the time of submissions.

5. Heard learned Senior Counsel Mr. A.S. Khandeparkar instructed by learned Advocate Mr. R.R. Karpe for the petitioner, learned Advocate Mr. P.S. Patil for respondent No. 1, learned Senior Counsel Mr. V.D. Sapkal instructed by Mr. S.R. Sapkal for respondent No. 2 and learned AGP Mr. V.M. Jaware for respondent No. 4-State.

6. Learned Senior Counsel Mr. A.S. Khandeparkar instructed by learned Advocate Mr. R.R. Karpe for the petitioner has taken us through all the documents produced by the petitioner and especially, the schedule of the tender, terms and conditions and the documents submitted by the respondents, which were downloaded from the other websites and he has specifically stated that the facility of viewing the documents of respondent Nos. 2 and 3 from the portal which was provided by respondent No. 1 was disabled. By pointing out the technical bid scrutiny chart, he submitted that except the column stating that whether the terms and conditions have been fulfilled or not in respect of all the conditions i.e. condition Nos. 1 to 14 and 16, the petitioner has been held to be qualified. That means, the petitioner had uploaded all t