Judicial review in tender matters is limited to legality and fairness; minor procedural lapses do not justify interference if public interest is served.

JUDGMENT :

AMIT BORKAR, J.

1. Under challenge in this petition filed under Article 226 of the Constitution of India is the decision pertaining to tender Zone No. 2, dated 12 December 2022, declaring respondent No. 4 eligible to participate in the tender process and allotment of work of daily sweeping and cleaning of roads, footpaths, public places, sweeping in commercial areas/market/ roads at night and cleaning of gutters (drainage) for period of five years.

2. On 6 October 2022, Respondent No. 1 issued Notice No. MBMC/Health/307/2022-23 inviting online tenders from experienced contractors via E-Tendering for the daily sweeping and cleaning of roads, footpaths, and for the collection and transportation of solid waste for a period of five years in Zone No. 2. The estimated cost of the tender was Rs.91,92,51,405/- and bidders were required to deposit earnest money in the amount of Rs.1,37,88,771/-.

3. Clause 8 of the tender document formed the basis for the bid evaluation process. Clause 8.6 stipulated that the financial bid of a contractor who does not qualify technically would not be opened. Clause 21 specified that only contractors who met the eligibility criteria outlined in the tender terms and conditions (Envelope-1 of the tender notice) would be eligible for the opening of the financial bid. Clause 25.8(A) required contractors to submit documents relating to their experience in Envelope No. 1-technical bid, along with proof certificates. Clause 21.3.b. to be submitted in Envelope No. 1, mandated that contractors must have successfully executed, completed, or be engaged in similar services over the past five years, with valid certificates as detailed in Clauses (i), (ii), and (iii). Clause 31, dealing with clarification of offers, empowered Respondent No. 1 to seek technical clarification, provided that such clarification requests and responses were to be in writing. It further required that the original copy of the document detailing the clarification be submitted to Respondent No. 1. Clause 32 dealt with the rejection of tenders, stipulating that tenders could be rejected if the contractor failed to submit a valid experience certificate.

4. Four bidders, including the petitioners, Respondent Nos.4 and 5, participated in the tender process. On 12 December 2022, Respondent No. 1's technical scrutiny committee met at 12:30 p.m. to open the technical envelopes of all four bidders. After scrutiny, it was found that the petitioners, Respondent No. 4, and another bidder, AG Enviro Infra Projects Pvt. Ltd., met the criteria and were qualified. Respondent No. 5 was declared non-eligible, and their Earnest Money Deposit was returned.

5. The petitioners downloaded the applications of all bidders from the E-Tender website and discovered that Respondent No. 4 had submitted a certificate dated 23 June 2022, issued by the Additional Commissioner, Ulhasnagar Municipal Corporation, in the name of Konark Enviro Project Ltd. (SPV of M/s. Konark Infrastructure Ltd.). The certificate stated that a contract for the collection and transportation of solid waste had been awarded on 10 June 2013 for a period of eight years, at an approximate project cost of Rs.130 crores, commencing on 5 December 2013. It certified that the work and performance were up to the mark, with contractual obligations being fulfilled. Respondent No. 4 also submitted a Chartered Accountant’s certificate certifying its holding in Konark Enviro Project Ltd. and a certificate from Konark Enviro Project Ltd. stating that all its assets and liabilities belonged to Respondent No. 4.

6. On 13 December 2022, the petitioners received an email from Respondent No. 1 stating that their technical bid had been accepted and that the financial bid opening was scheduled for 13 December 2022 at 10:15 a.m. Upon opening of the financial bids, Respondent No. 4 was declared the L-1 bidder with a bid of Rs.1,46,984.64 per day, while the petitioners were the L-2 bidder with a bid of Rs.1,53,008.00 per