Point of Law:
Qualification for this work will be based on the entire following minimum criteria regarding their particular experience, financial position, personnel and equipment capabilities and other relevant information as demonstrated by the Applicant’s responses in the forms attached. The qualifications, capacity and resources of proposed subcontractors will not be taken into account in determining the applicant's compliance with the qualifying criteria.

JUDGMENT :

HARSHA DEVANI, J.

1. By this petition under Article 226 of the Constitution of India, the petitioners seek following substantive reliefs:

“10. (a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or an order/direction in the nature of certiorari or any other appropriate writ for quashing and setting aside the impugned decision/action of the Respondent No. 1 of inviting the 2nd Tender vide Tender Notice No. CE/HYD/01/2019-2020 dated 27th May, 2019 with amended qualification criteria in place of the Original Tender Notice dated 7th February, 2019; and

(b) that this Hon'ble Court be pleased to issue a writ of Mandamus or an order/direction in the nature of mandamus or any other appropriate writ directing the Respondent No. 1 to process and finalize the bids received pursuant to Original Tender Notice dated 7th February 2019;

or in the alternative

(b-1) this Hon'ble Court without prejudice to the prayers 9(a) and 9(b) herein above, be pleased to declare that the qualifying criteria of the 2nd Tender Notice No. CE/HYD/01/2019-2020 dated 27th May, 2019 in so far as it excludes the experience under a sub-contract is illegal, arbitrary, unreasonable and violative of Article 14 and 19(1)(g) of the Constitution of India and the Respondents be directed to produce the Work Order issued by Respondent No. 1 to Respondent No. 2 in pursuance of the 2nd Tender and be further pleased to issue a writ of certiorari quashing and setting aside the Work Order issued by the Respondent No. 1 in favour of Respondent No. 2 in pursuance of the 2nd Tender dated 27th May, 2019.”

2. The facts stated briefly are that on 07.02.2019, the first respondent – Surat Municipal Corporation (hereinafter referred to as the “SMC”) published an e-Tender Notice No.CE/HYD/25/2018-2019 (Tender ID 348865), that is, original tender inviting tenders for supply, erection, testing and commissioning (SETC) and ten years of Operation and Maintenance (O&M) Contract of:

(A) Electromechanical valve with Programmable Logic Controller (PLC) or Remote Terminal Units (RTU) based for all ESR;

(B) Supervisory Control and Data Acquisition (SCADA) Automation System for all WDS, Booster and Intake Well &

(C) Integration of all existing PLC based SCADA system of Water Works, French Well, WDS with Centralized SCADA system of Surat City under Smart City Scheme for Surat Municipal Corporation.

2.1 The original tender notice specified for a pre-bid meeting to be held on 11.02.2019, prior to submission of bids. Furthermore, the notice specified that the last date and time of online submission of bid was on or before 20.02.2019, up to 18:00 hours and the submission of the tender fee and earnest money deposit (EMD) in hard copy, was on or before 28.02.2019 and the date of opening of price bid was to be informed later on (online). The estimated cost of tender was Rs.32,71,66,500/-.

2.2 The general description of the work being the technical, insofar as the same is relevant for the purpose, reads thus:

“Instrumentation, PLC & SCADA with Telemetry, Electrical & Mechanical works with associated Civil works for Intake Wells, Water Treatment Plants (WTP), Booster Stations, Water Distribution Stations (WDS), Elevated Service Reservoir (ESR) as applicable at Various Locations and as specified in tender which shall generally include but not limited to the following...”.

“The work of PLC, SCADA, Automation & Telemetry shall be carried out only by the manufacturer or authorized system integrator (Shall be having valid authorization certificate of at least 5 years and shall be submitted along with work experience credentials for verification and approval of SMC during engineering approval stage) of the approved makes of PLC & SCADA specified in tender.”

2.3 The period of completion envisaged under the tender notice was eighteen months. The qualifying criteria for the proposed bidders as stated in the tender, is extracted herein below:

“Qualification for this work will be based on the entire follow