IMPORTANT POINT
The court affirmed that compliance with essential tender conditions is mandatory, and failure to meet these conditions justifies disqualification.

JUDGMENT :

MANGESH S. PATIL, J.

Heard. Rule. Rule is made returnable forthwith. The learned A.G.P waives service for respondent no. 1. Respondent nos. 2 and 3 have been served but have not caused appearance. Learned advocate Mr. Bhalerao waives service for respondent no. 4 and the learned advocate Mr. Salunke waives service for respondent no. 5. At the joint request of the parties, the matter is heard finally at the stage of admission.

2. The petitioner is challenging his disqualification at the technical evaluation of the offer submitted by him in respect of the E-tender notice no. 22/2023-24, floated by the respondent nos. 2 to 4 for the work ‘Restoration of canal section and lining in 47 km to 48 km of Paithan Left Bank Canal’. It is also challenging qualification of respondent no. 5 at the technical evaluation. It is seeking writ of mandamus against respondent no. 4 directing him to qualify it and to open its financial bid.

3. Mr. Bhandari would submit that the petitioner was disqualified primarily for two reasons; (1) absence of digital signature, and (2) failure to submit proof of I.P. address of the device from which the tender is uploaded. He would submit that both these shortcomings were easily curable. He would submits that the technical bids were to be opened on 28.03.2024. The financial bids were to be opened on 30.07.2024. Even if there were some shortcomings and defects, those were to be notified and the period of around three months between the date of opening of the technical bid and the financial bid was supposed to be used for getting such curable defects rectified. He would also advert our attention to the government resolutions dated 27.09.2018 and 17.09.2019, issued by the Public Works Department in this regard. According to him when it was a matter of public work, an opportunity ought to have been extended to the petitioner to cure both these defects. It is only for that purpose the period of 3 months intervening the date of opening of the technical bids and that of financial bids was kept. The approach of disqualifying the petitioner in a hurried manner, without giving him any intimation about it is clearly demonstrative of arbitrariness in the decision making process. The decision was taken objectively to eliminate it and to favour respondent no. 5.

4. Mr. Bhandari would submit that as per Clause 4.1, it was expected that after opening of the technical bid and after scrutiny of the documents of the bidders, a list of qualification/disqualification would be prepared and communicated to the bidders and also would be published on the web portal through which ‘E’ tender process was being undertaken. It expressly stipulated intimation to be given together with reasons to the bidders, who were held to be disqualified. Even there was a stipulation for providing an opportunity to the disqualified bidder to approach the authorities and expecting the authorities to extend an opportunity of personal hearing. However, these requirements were not followed by respondent nos.2 to 4 and demonstrates arbitrariness in undertaking the tender process.

5. Mr. Bhandari would then submit that the offer of respondent no. 5 was suffering from several shortcomings and was not compatible with the terms and conditions of the tender notice. However, the authorities have conveniently ignored the shortcomings and it was allowed to clear the technical bid successfully. He would submit that as per clause 2.2.A (V) of the tender document, the bidder was expected to submit a list of machinery and plants for their use in the proposed work. It required documentary proof in respect of the machinery owned by the bidder in the form of R.T.O. registration, certificate of taxation, goods carriage permit in Form P-Gd (Rule 72 (i)(v) of the Motor Vehicles Rules and certificate of fitness in Form 38 as per Rule 62(i)(7). He would submit that the respondent no. 5 had not furnished any certificate of fitness of the plant and machinery as per this stipulat