IMPORTANT POINT
Judicial review of tender conditions is limited to preventing arbitrariness; authorities have discretion in setting conditions based on project requirements.

JUDGMENT :

(Shailesh P. Brahme, J.) :

Rule. Rule is made returnable forthwith with the consent of the parties. Heard litigating sides finally.

2. Petitioner is a proprietary firm working in the management, treatment and disposal of solid waste. It has approached this Court challenging the request for proposal floated through e-tender notice dated 10.06.2024 for selection of an operator for collection, transportation and processing of Municipal Solid Waste for Latur Municipal Corporation and seeking directions to issue fresh tender process.

3. Previously, respondent no. 2 – Corporation floated a tender notice dated 07.02.2024 for selection of operator for solid waste management for Latur City. It was challenged by Janadhar Sevabhavi Sanstha, Latur, by preferring Writ Petition No. 2717 of 2024 in the High Court. It was allowed by judgment and order dated 02.04.2024, thereby, quashing e-tender notice and directing respondent no. 2 -Corporation to undertake fresh tender process as per existing laws and Government Resolution. In pursuance of the order of the High Court, respondent no. 2 – Corporation has undertaken fresh tender process vide tender notice dated 10.06.2024, which is sought to be quashed.

4. There is no controversy about following facts :

(a) Earlier tender process was quashed by the High Court in Writ Petition No. 2717/2024.

(b) Fresh tender process is being undertaken by issuing notice dated 10.06.2024.

(c) Respondent received three bids and the technical bid was to be opened on 08.07.2024.

(d) Petitioner has not participated in the current tender process but it is challenging certain tender conditions.

(e) Petitioner seeks to challenge following tender conditions, as can be seen from paragraph no. 10 of the memo of the petition :

19) Eligibility Criteria

II. Bidder should have minimum seven years of experience in last Ten years for providing service of Door to Door collection and transportation of Municipal Solid Waste, Drain Cleaning, Road Sweeping, Toilet Cleaning, Fogging and Spraying. Experience letter from Executive engineer and above will only be considered as valid.

III. Bidder should have minimum Seven years of continuous experience in operation and Maintenance of Municipal Solid Waste Processing Plant along with Operation and Maintenance of landfill site of minimum 150 TPD capacity in last seven years.

VII. Certificate from a Chartered Accountant that the total turnover for the last three years is Rs. 90.00 Crores.

VIII. Net worth of the tenderer should be at-least 50 Crore and should be positive as on 31st March 2024.

IX. The bidder should submit a solvency certificate from nationalized bank of Rs. 50 Cr.”

(f) Tender process has been challenged on other grounds also, relying on Government Resolution dated 27.09.2018.

5. Learned counsel for the petitioner Mr. Sachin S. Deshmukh submits that petitioner is entitled to challenge tender process and the tender conditions without participating in the tender process if there is arbitrariness, mala fides and highhandedness. He would submit that the respondent no. 2 – Corporation has audacity to retain the conditions which were earlier criticized by the High Court, which amounts to arbitrariness and highhandedness. It is further contended that no tender price was fixed which is arbitrary and against the findings of High Court in the earlier round of litigation.

6. He submits that the eligibility conditions stipulated in clause 19 vide condition nos. II, III, VII, VIII and IX stated in paragraph no. 10 of the memo of the petition are unjustified, arbitrary and irrational. The tender process is against guidelines provided by Government Resolution dated 27.09.2018. He further submits that impugned tender notice is against Solid Waste Management Rules of 2016. It is contended that impugned tender conditions are designed to favour particular bidder and to exclude the tenderers like petitioner.

7. Respondent no. 2 – Corporation has filed affidavit-in- reply. Learned Senior Counsel Mr. S.B