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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
MANGESH S. PATIL, SHAILESH P. BRAHME, JJ.
Pride Ventures (I) Pvt. Ltd., Chh. Sambhajinagar, Through its Authorized Signatory, Mohammad Hares Siddiqui - Petitioner
Versus
The State of Maharashtra, Through its Public Works Department and Ors. – Respondents
Writ Petition No. 2098 Of 2024
Decided On : 05-08-2024
Tender - Disqualification - Government Resolution - The court discussed the conditions for tender compliance, particularly regarding the green building certification, interpreting the requirements and the authority of the evaluation committee, ultimately affirming the disqualification of the petitioner.
Fact of the Case:
The petitioner was disqualified from a tender for failing to meet the green building certification requirements as stipulated in the tender documents, which were modified post-publication. The petitioner argued that the conditions were vague and that they had submitted sufficient documentation.
Finding of the Court:
The court found that the petitioner did not comply with the essential requirements for the green building certification and upheld the evaluation committee's decision, emphasizing the importance of completed projects over pre-certifications.
Issues: Whether the petitioner was correctly disqualified from the tender process for failing to meet the green building certification requirements as per the modified tender conditions.
Ratio Decidendi: The court held that the interpretation of tender conditions is within the purview of the evaluation committee, and the petitioner’s reliance on pre-certification did not satisfy the requirement of completed projects.
Result: The Writ Petition is dismissed.
JUDGMENT :
(Mangesh S. Patil, J.) :
Heard. Rule. Rule is made returnable forthwith. The learned A.G.P. and learned advocate Mr. Sadawarte waive service for the respondents. At the joint request of the parties, the matter is heard finally at the stage of admission.
2. Respondent no. 4, who is the Executive Engineer of Public Works Department, Chhatrapati Sambhajinagar, published ‘E’ tender notice on 08.09.2023 for the construction of ‘Collector Office building at Vishwas Nagar (Labour Colony) Aurangabad’.
3. By publishing Errata/Corrigendum on 09.09.2023 a condition was added directing the bidders to upload ‘green building certificate’ issued by Indian Green Building Council (IGBC). The petitioner submitted his bid on 06.10.2023 and even uploaded a certificate issued by IGBC (page 688). On 10.10.2023 technical bids were opened. By a communication dated 30.10.2023 (Exh. ‘C’) respondent No.4 called upon the petitioner to rectify/comply with the deficiencies inter alia containing item no. 9, which read as under:
“9. The IGBC (Green Building) certificate is precertificate dated September 2021 but the actual date of work completion is 31/03/2023. Hence certified certificate of green building is required”
4. The petitioner replied to the queries by a communication dated 01.01.2023 (Exh. ‘D’), as follows:
“With reference to the above-mentioned tender and the requirement for the clause of completion of IGBC Building certificate, it is to be noted that our consultant “Building Environment India Pvt. Ltd.” has submitted the six monthly compliance to the IGBC department timely and also applied for final certification as per IGBC norms.
An interim certification from the IGBC department has been issued for the project which we are submitting along with this letter. Hence request you to please accept this letter and qualify our bid”
5. By a separate communication of the even date, even reply was given to five of the other queries raised in the communication (Exh. ‘C’).
6. On 08.01.2024 (Exh.’E’) stating that since pursuant to the government resolution dated 27.09.2018 the work estimate was of more than 100 Crore, the evaluation committee in its meeting dated 04.01.2024 had recorded the minutes, evaluating the bids and mentioning inter alia that five bidders including the petitioner’s Joint Venture were not qualified and only one bidder Shubham EPC Pvt. Ltd., was qualified. It further stated that pursuant to the self-same government resolution since there was only one qualified bidder, it was decided to go for a second call. It was further resolved to publish this decision on the website for a period of five days.
7. Aggrieved by a similar disqualification, one of the other bidders namely Hi Tech Wonder, J.V. Aurangabad, preferred Writ Petition No. 552/2024 on 12.01.2024. By the order dated 12.01.2024, this Court stayed further tender process.
8. The petitioner questioned its disqualification by filing this petition on 16.02.2024.
9. The petitioner was disqualified with the reason that it was noncompliant with the terms and conditions regarding ‘green building certificate’.
10. It is the stand of the petitioner that by a communication dated 24.01.2024 (Exh. ‘F’) the petitioner submitted IGBC green rating certificate for project “Pride Century” to which Aurangabad Municipal Corporation had given occupancy certificate on 19.07.2021.
11. The petitioner in Writ Petition No.552/2024, with the leave of the Court withdrew its writ petition on 10.07.2024.
12. Alleging that taking advantage of this, the second call was published on 12.07.2024 (Exh. ‘I’), the petitioner with the leave of the Court has now amended the petition and has put up a challenge even to the second call.
13. The learned advocate Mr. Palodkar based his arguments essentially on the ground that the additional condition in respect of certification by IGBC, modified and corrected from time to time by issuing corrigendum itself was vague. He would point out that initially no such condition was there
AI
The court affirmed that compliance with tender conditions, particularly regarding project completion and certification, is essential for qualification, and the evaluation committee's discretion in in....
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 court affirmed that compliance with essential tender conditions is mandatory, and failure to meet these conditions justifies disqualification.
The court upheld the authority's discretion in evaluating tender bids, emphasizing the need for compliance with mandatory conditions and the absence of arbitrariness in disqualification decisions.
The judgment establishes the importance of meeting essential tender conditions, particularly the financial qualification criteria, and the consequences of non-compliance.
The judgment establishes the importance of meeting essential conditions in a tender process and emphasizes the significance of complying with prescribed formats in tender documents.
Tender authorities have broad discretion in evaluating bids, and a failure to comply with mandatory document submission requirements justifies disqualification unless clear malice is shown.
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