IMPORTANT POINT
The main legal point established in the judgment is that the conduct of the tendering authority, including the introduction of substantive terms through corrigendum and biased disqualification processes, can be subject to judicial review if found to be arbitrary and unfair.

JUDGMENT :

ARIF S. DOCTOR, J.

1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for parties, the present Writ Petition is taken up for final hearing.

2. The Petition essentially impugns the Petitioner’s disqualification from the tender process floated by Respondent No. 2 - Malegaon Municipal Corporation for the supply of medicines, materials, laboratory chemicals and equipment’s for hospitals/clinics (“the said tender”) on the ground that the Petitioner had failed to submit a “No Conviction Certificate” in terms of a corrigendum dated 19th April, 2023 issued by Respondent No. 2.

3. Before adverting to the rival contentions, it is useful to set out the following facts, viz.

i. Respondent No.2 had vide a notice dated 15th April 2023 published an advertisement for calling for bids in respect of the said tender for which the last date for submission of bids was 5.00 p.m. on 21st April 2023.

ii. It is not in dispute that (a) Respondent No. 2 thereafter on 19th April 2023 at 9.11 p.m. i.e. effectively one day prior to the submission of bids, issued a corrigendum by which Respondent No. 2 required as a mandatory eligibility criteria bidders to submit a “No Conviction Certificate” and (b) that this corrigendum was neither published/advertised nor communicated to the Petitioner but was merely uploaded on the website of Respondent No. 2.

iii. Though strictly not relevant to the present challenge, it is the Petitioner’s contention that the Petitioner was made aware of this corrigendum by one of the officers of Respondent No. 2 only on 20th April 2023 and that the said corrigendum prior to 25th April 2023 was not opening on the website of Respondent No. 2. It is the Petitioner’s contention that the said corrigendum opened for the first time only on 25th April 2023.

iv. On 26th April, 2023, three things happened (a) the Petitioner’s technical bid was opened and the Petitioner was held to be technically qualified (b) the Petitioner requested the Food and Drugs Administration, Maharashtra to issue a “No Conviction Certificate” to the Petitioner and (c) the Petitioner requested Respondent No. 2 to extend the time for submission of the “No Conviction Certificate”.

v. It is again not in dispute that thereafter by a letter dated 12th May 2023 Respondent No. 2 granted the Petitioner an extension of time till 16th May 2023 to submit the said “No Conviction Certificate” and that the Petitioner thereafter infact submitted the said “No Conviction Certificate” dated 4th May 2023 issued by the Food & Drugs Administration, Nashik Zone 3 District on 12th May, 2023 i.e. within the extended time.

vi. However, despite the above, i.e., submission of a “No Conviction Certificate” by the Petitioner within the extended time, Respondent No. 2 (a) published its scrutiny letter dated 13th July 2023 disqualifying the Petitioner on the ground that the Petitioner had not submitted “No Conviction Certificate” and (b) published its Tender Summary Report on 19th July 2023 disqualifying the Petitioner on technical grounds and accepting Respondent Nos. 3, 4 and 5 as technically qualified. Respondent No. 4 was thereafter, it appears declared as the successful bidder.

4. It is in the aforesaid factual matrix that the Petitioner has essentially impugned (i) the Scrutiny Letter dated 13th July 2023 and (ii) the Tender Summary Report dated 19th July 2023.

5. Before proceeding further, we must at this stage note that this Court had vide an order dated 25th July 2023 inter alia granted interim relief by directing that if the work order had not been granted, the same should not be issued till the next date. Thereafter after a detailed hearing on interim reliefs this Court had vide an order dated 4th November 2023 inter alia held that the conduct of Respondent No. 2 in not opening the Petitioner’s technical bid was not only truly unreasonable in the wednesbury sense but also perverse and directed Respondent No. 2 to open the technical bid of the Petitioner and