IMPORTANT POINT
Judicial review in tender matters is limited; courts should not interfere unless there is clear evidence of arbitrariness or mala fide conduct.

JUDGMENT :

AMIT BORKAR, J.

1. The present petition challenges the legality and propriety of the communication dated 14th March 2024, regarding the technical bid summary, which demanded details of bid capacity and technical manpower, as well as the communication dated 18th June 2024, rejecting the petitioner’s bid and declaring the petitioner disqualified.

2. The petitioner, a proprietorship firm engaged in civil construction works for the past 15 years, has brought this petition. Respondents Nos. 2 and 3 issued e-Tender Notice No. 40 of 2001 (2023-2024), inviting bids for two works, which were published online from 15th February 2024 to 29th February 2024. The details of Notice No. 40 of 2001 (2023- 2024) were made available on the respondents' website for the construction of a cement concrete road from Lekha Nagar to Chhatrapati Shivaji Chowk in P. No. 24, New Nashik Division.

3. The estimated cost of the work was Rs. 5,47,68,859/- with a completion period of 18 calendar months, including monsoons. As per the tender conditions, the date for opening the tender was fixed for 1st March 2024 at 3:00 p.m. Clause 12 of the tender outlined the necessary work experience qualifications as follows:

“12. Eligibility of Tenderer:

12.1. The tenderer must have eligibility in term of work experience as follows:

(A) Experience of having successfully completed similar works during last five years ending last day of month previous to the one in which applications are invited should be either of the following:

1. Three similar completed works costing not less than the amount equal to 40% of estimated cost each

2. Two similar completed works costing not less than the amount equal to 50% of estimated cost each

3. One similar completed works costing not less than the amount equal to 80% of estimated cost each

4. “Similar works means construction of concrete road and & allied work.”

4. Clause 15-A required the average turnover of the parent company over the last three years to be 30% of the estimated cost, as certified by a Chartered Accountant. Clause 15-B provided a formula for calculating bid capacity as follows:

“15.A Required average turnover of parent company in last three years shall be 30% of cost put to tender of the work mentioned. Certificate issued by C.A. only will be considered.

(B) Bid Capacity:

Bidder who meet the minimum qualification criteria will be qualified only if their available bid capacity is more than the total bid value. The available bid capacity will be calculated as under.

Assessed available bid capacity = (A x N x 1.5) - B

Where:

A = Maximum Value of Annual Turnover executed in any one year during the last Five Years (updated to 2022-23 price level)

N + Number of Years prescribed for completion of the work for which bids are invited for 12(Twelve) Months for calculation of Bid Capacity) i.e. For 12 months N+1, for 6 months N + 0.5

B = Value of existing commitments and on-going works to be completed during the next 12 (Twelve) months, In support of this information should be submitted in Format No. III

Note: Since all the data is pertaining to the contractors own performance, the contractors are requested to provide its bidding capacity for this work by furnishing the calculations and supporting documents duly certified by Chartered Accountant to prove its contents along with the application for issue of tender form.”

5. The petitioner contends that the Government Resolution dated 7th December 2023 applies to the tender in question. On 14th March 2024, respondent No. 3 informed the petitioner of failure to submit bid capacity and manpower details by 29th February 2024 and granted five days for compliance. The petitioner asserts that the bid capacity certificate, certified by a Chartered Accountant, and the technical manpower certificate had already been uploaded prior to 29th December 2024. The petitioner argues that these certificates can only be issued prospectively, and it is impossible to obtain them with backdated signatures. Therefore