Bombay High Court
Shapoorji Pallonji And Co. Pvt. ... vs State Of Maharashtra And 4 Ors on 9 May, 2022
Bench: A.A. Sayed, S. G. Dige
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) No.17042 OF 2021
...
Shapoorji Pallonji and Co.
Pvt. Ltd. and Anr. ...Petitioners
Vs.
State of Maharashtra and Ors. ...Respondents
...
Mr. Janak Dwarkadas, Senior Counsel a/w. Mr. Venkatesh Dhond
a/w. Mr. Rohan Kelkar a/w. Shilpi Jain a/w. Ms. Dhanyashree
Shah a/w. Mr. Manas Kotak a/w. Ms. Huzan Bhumgara i/b. Desai
& Diwanji Advocates for the Petitioners.
Mr. Amit Shastri, AGP for Respondent No.1-State
Mr. Aspi Chinoy, Senior Counsel, a/w. Joel Carlos a/w. Vandana Mahadik
for Respondent Nos 2 to 4-Corporation.
Mr.Akshay Doctor a/w Zain-es-Najmi for Respondent No.5.
...
CORAM : A.A. SAYED &
S.G.DIGE, JJ.
DATED : 9 MAY 2022
(IN CHAMBER AT 11 A.M.)
ORDER: (Per A.A.Sayed,J.)
1 The above Writ Petition has been filed seeking the following
reliefs:
"(a) This Hon'ble court be pleased to issue a Writ of Certiorari or
any other appropriate writ, order of direction calling for the records
relating to the present E-Tender No.WS-537 and after considering the
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legality, validity and propriety thereof be pleased to quash and set
aside the decision of the Respondent Nos.2 and 3 to terminate the
Petitioners' bid and disqualify the Petitioners from the aforesaid E-
Tender as contained in the Letters dated 13 th July, 2021 and 28th July,
2021;
(b) This Hon'ble Court be pleased to issue a Writ of Mandamus or
any other appropriate writ directing the Respondents, including their
agents, officers, assigns or any other person acting through them, to
treat the documents provided by the Petitioners with respect to the
Technical Eligibility Criteria as more particularly contained in Clause 3
of Section 2 of the E-Tender Document as being adequate and
sufficient to comply with the said criteria;
(c) This Hon'ble Court be pleased to issue a Writ of Mandamus or
any other appropriate writ directing the Respondents, including their
agents, officers, assigns or any other person acting through them, to
award the Project works forming part of E-Tender No.WS-537 in
favour of the Joint Venture comprising of Petitioner No.1 and
Petitioner No.2 (being admittedly the L-1 bidder);"
2. Petitioner No.1 is stated to be a flagship company of Shapoorji
Pallonji Group. Petitioner No.2 is a registered Civil Contractor of the
Municipal Corporation of Greater Mumbai. Petitioner Nos.1 and 2 formed a
Joint Venture Undertaking sometime in November, 2020 by the name of
'Shapoorji Pallonji-Konark JV' (Joint Venture) to participate in and execute
the works relating to the subject e-Tender floated by Respondent-
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Corporation. The Tender involved designing, providing, constructing and
commissioning of a modernized and fully automated package/modular
Sewage Treatment Plants based on MBR technology along
Oshiwara/Walbhat river on Design Build Operate basis (DBO). In addition,
the scope of the Tender also involved Operation and Maintenance of the
Plants for a period of 15 years as well as providing and laying of sewer
network, provision of Interceptors for diversion of DWF, construction of
service road, and roadside drains on either banks of Oshiwara/Walbhat
River for interception and diversion works of sewage (hereinafter referred to
as "the Project").
3. Respondent No.1 is the State Government. Respondent No.2 is
the Municipal Corporation of Greater Mumbai. Respondent No.3 is the Dy.
Chief Engineer (Sewage Works Department) who oversees the execution of
various sewage treatment works. Respondent No.4 is the Commissioner of
the Respondent No. 2-Corporation. Respondent No.5-Trenchless
Engineering Services Pvt. Ltd. (hereinafter referred to as 'Respondent No.5-
Trenchless') is the Technical associate/partner appointed by the Joint
Venture in relation to part of the project. It is stated that the Respondent No.
5-Trenchless possesses requisite knowledge and experience in relation to
an important aspect of the Tender i.e. laying of pipes by use of Horizontal
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Directional Drilling (HDD) to bore trough rock formations having strength in
excess of 5 Moh and crushing value of more than 250 Mpa.
4. The Respondent-Corporation terminated the bid of the Petitioners
and disqualified the Petitioners from the e-Tender vide the impugned letter
dated 13 July 2021 and reiterated in the impugned letter dated 28 July
2021, on the ground that the Petitioners had not submitted necessary
documents to establish the technical experience of Respondent No. 5-
Trenchless in terms of the Tender, which is the subject matter of challenge
in this Petition. The Petitioners claim that the disqualification and
termination to be illegal, wrongful, arbitrary and malafide. The Petitioners
also seek a writ of mandamus to award the contract to their Joint Venture
(JV).
5. In or around April 2020, the Respondent-Corporation issued the
e-Tender inviting bids for the Project. Under Section 1 of the Tender
Document, the bidding process was to comprise of a 3-stage system,
whereby necessary documents required for each stage of the Tender were
to be uploaded online in Packets A.B and C. These packets were to be
opened on the dates more particularly specified in Section 1 of the Tender
Document read with Corrigenda issued from time to time. Section 1 further
provides that Packet-C would be opened only if Packets A & B satisfy all E-
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Tender Document requirements. The 'Eligibility Criteria' is set out in Section
2 of Tender document. The `Eligibility Criteria' is bifurcated in four broad
categories, namely, (I) Technical Capacity (Clause 1), (II) Financial Capacity
(Clause 2), (III) Technical Experience (Clause 3) (IV) Bid Capacity
(Clause 4). Section 6 of the Tender Document, inter alia, provides for
meaning of "non-curable defects". The "non-curable defects" are extracted
hereunder:
"i. Inadequate submission of EMD/ASD Amount;
ii. Inadequacy of technical and financial capacity with respect to the
eligibility criteria;
iii. Wrong calculation of bid capacity.
iv. No proper submission of experience certificates and other
documents, etc."
6. By Corrigendum-12 issued by the Respondent-Corporation, the
'Technical Experience' eligibility criteria specified in Clause 3 of Section 2 of
the Tender Document was amended. The revised 'Technical Experience'
eligibility criteria required for Project reads as under:
"For assessing the technical capacity of bidder as per Clause 1.
(II) similar work shall mean the completed works of laying
Gravity/rising main in sewage Network/SW drain network.
AND
The bidder shall have experience of providing and laying
Sewer/Water/Petroleum/Gas line/Telecommunication cables/High
Power Cables by HDD (Horizontal Directional Drilling) in
extremely hard Rock having hardness factor not less than 5
(Mohs) and 250 Mpa for the cumulative minimum length of 150
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RM in completed or on-going projects in MCGM/Semi
Government/Government and Public Sector Organizations during
last seven (7) years.
OR
They should submit memorandum of understanding (MOU) with a
firm and the firm should have laying experience as per the
requirement given above either in his own capacity or as an
official approved Subcontractor. The tenderer has to submit all
credentials of the firm with whom they `are entering with MOU.
AND
The bidder or technology provider shall have experience of
carrying out excavation by Pulse Plasma technology or any
other similar technology. The technology for rock excavation
shall have zero shock wave with permissible sound level and
vibration velocity less than 1 mm/sec. The technology shall be
certified by PESO (Petroleum & Explosive Safety Organisation, India)
as a non-explosive process.
(The contractor has to quote considering the site condition and no
extra/separate payment will be made for using Pulse Plasma or any
other similar technology for excavation in rock.)"
7. The Petitioner Nos.1 & 2 being desirous of participating in the
Tender, formed a Joint Venture and entered into Joint Venture Agreement
on 9-11-2020. Since the Petitioner Nos.1 & 2 did not by themselves
possess one aspect of the required technical eligibility criteria with respect
to use HDD for excavating hard rock formations having a hardness factor of
not less than 5 Mohs and 250 Mpa, they appointed the Respondent No.5-
Trenchless to act as a technology provider to the Joint Venture with respect
to the said HDD work required to be undertaken as part of the Project and
accordingly entered into Memorandum of Understanding (MoU) with
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Respondent No.5-Trenchless on 13-11-2020. On 16-02-2021, the Joint
Venture submitted its bid on the on-line portal of the Respondent-
Corporation for the e-Tender. As part of the bid, the Petitioners also
submitted Packets A,B & C. The Joint Venture, inter alia, submitted
documents reflecting the expertise of Respondent No.5-Trenchless in HDD
including MoU dated 13-11-2020 with Respondent No.5-Trenchless. In
terms of the Tender document, the three Packets were to be opened in
accordance with the timelines as provided in Section 1 of the Tender
Document.
8. On 09-03-2021, the Respondent No.3-Dy. Chief Engineer
addressed a letter to the Petitioners inter alia, informing them that pursuant
to the submission of their bid, e-Packets A and B had been opened by the
Respondent-Corporation on 17-02-2021 and that pursuant to the scrutiny of
documents, there were certain shortfalls and called upon the Petitioners to
cure the said shortfalls in the bid by providing the necessary documents.
One of the main shortfall identified by the Respondent-Corporation at Item
No. 4 in the said letter dated 09.03.2021, was that the condition of Technical
Experience in Clause 3 of Section 2 of the Tender document required the
submission of an Experience Certificate from employer and that the same is
not submitted. The said letter dated 09.03.2021 is hereinafter referred to as
'the shortfall letter dated 09.03.2021'.
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9. By letter dated 11-03-2021, the Petitioners responded to the
shortfall letter dated 09-03-2021. In respect of the shortfall identified at Item
No.4 of the said shortfall letter dated 09-03-2021, the Joint Venture
provided a copy of the Certificate dated 12-03-2021 issued by one
Advance BFEW Consortium in favour of Respondent No.5-Trenchless, inter
alia, certifying that Respondent No.5-Trenchless had successfully
undertaken HDD works through rock formations having hardness in excess
of 5 (Mohs) for Hindustan Petroleum Corporation Ltd.'s project (HPCL
Project). According to the Petitioners, Advance BFEW Consortium had
been appointed as the main contractor and Advance BFEW Consortium in
turn appointed Respondent No.5-Trenchless as the sub-contractor to
undertake the necessary HDD related works for the HPCL Project. The
Petitioners claim that the Advance BFEW Consortium Certificate was
sufficient proof of compliance with the requirement of Clause 3 of Section 2.
On 31-03-2021, the Respondent-Corporation addressed an e-mail to the
Petitioners, inter alia, stating that the Technical Advisory Committee (TAC)
had been formed on 14.11.2019 and called upon the Petitioners to make
power-point presentation of the technical proposal submitted by them in
respect of the Project. It was further informed that a meeting of the officials
forming part of the TAC and officials of Respondent-Corporation was
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scheduled to be held on 01-04-2021, where the technical proposals
received for the Project would be evaluated and the presentation of the
Petitioners would be useful to clarify and evaluate technical aspects of the
Project. According to the Petitioners, prior to opening Packet-C, the
representatives of the Joint Venture were orally informed by the officials of
Respondent-Corporation that they were expected to execute another
Undertaking (apart from the undertaking that was submitted earlier), inter
alia, specifying that the Joint Venture would adhere to the tender conditions
relating to the experience required for HDD works and would submit all
necessary documents and accordingly the Joint Venture executed the
Undertaking dated 5-04-2021.
10. On 03-06-2021, the Respondent-Corporation addressed an
email/letter to the Petitioner No.1, inter alia, intimating that opening of the
final Packet of e-Tender Bid i.e. Packet-C would take place on 04-06-2021.
On 09-06-2021, after opening of the Packet-C, the Respondent No.3
addressed a letter to the Petitioners, inter alia, informing them that Packet-
C had been opened and the same was under detailed scrutiny and called
upon the Petitioners to provide interalia detailed cost break-ups and
justification of the individual items quoted pertaining to the Project in terms
of Annexure-6 of Corrigendum-16. On 11-06-2021, the Respondent-
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Corporation addressed an email to the Petitioners, inter alia, stating that
Packet-C was opened on 04.06.2021 and their Joint Venture had been
declared as the lowest bidder (L-1 bidder) in the Tender and called upon the
Joint Venture to submit rate analysis for the items required for the Project in
the format annexed at Annexure "D" of the Tender Document alongwith
justification for the quoted rates within 3 days. According to the Petitioners,
from the said letter it was clearly evident that the Respondent-Corporation
had accepted the Petitioners' bid/offer as compliant. On 15-06-2021, the
Joint Venture responded to the email and submitted the necessary rate
analysis in the prescribed format. According to the Petitioners, thereafter, a
telephonic communication was received from the officials of the
Respondent Nos.2 & 3 and for the first time voiced certain reservations with
regard Advance BFEW Consortium Certificate (submitted to the
Respondent-Corporation by letter dated 11-03-2021 in response to shortfall
letter dated 09.03.2021), which had been provided by the Petitioners in
order to comply with the Technical Experience eligibility criteria. According
to the Petitioners, the reservation voiced to them was that the said
Certificate had not been issued by a Government
Undertaking/Organization. In view thereof, the Joint Venture was called
upon to submit additional certification issued in favour of Respondent No.5-
Trenchless. According to the Petitioners, on 22-06-2021, the Joint Venture
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by their email forwarded additional Certificate i.e. Certificate dated 30-10-
2020 of Bharat Petroleum Corporation Ltd. (BPCL Project Certificate)
issued by Engineers India Ltd., a Government of India Undertaking, which
was the Project Management Consultant (PMC) in respect of the BPCL
Project, where also, the Respondent No.5-Trenchless had successfully
undertaken and completed HDD-related works. The Petitioners assert that
in the aforesaid email dated 22-06-2021, it was categorically stated that-
(i) the work done in respect of the HPCL Project and the Advance
BFEW Consortium Certificate issued in respect thereof fulfilled the
conditions of the e-Tender;
(ii) It was only because Respondent-Corporation had requested for a
certificate issued by a government undertaking, the Joint Venture was
providing the additional work done certificate for BPCL.
(iii) Respondent-Corporation was also informed that Respondent
No.5-Trenchless was already in discussion with HPCL (through
Advance BFEW Consortium) to obtain a certificate from HPCL with
respect to the HDD work undertaken by Respondent No.5-Trenchless
in respect of the HPCL Project.
11. On 24-06-2021, the Petitioners submitted the following documents
to the Respondent-Corporation:
i. Completion Certificate dated 13th May 2020 issued by HPCL
certifying that the HDD works undertaken in respect of the HPCL
Project were satisfactorily completed, and
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ii. Letter of Intent dated 17th February 2017 issued by HPCL to
Advance BFEW Consortium.
According to the Petitioners, the Letter of Intent was submitted to show that
the work certified to be completed by Respondent No.5-Trenchless in the
Advance BFEW Consortium Certificate was in respect of the HPCL Project.
12. On 26-06-2021, the Petitioners addressed an email to the
Respondent-Corporation, inter alia, explaining -
i. With respect to the HPCL project, Advance BFEW Consortium had
been appointed as the main contractor. In the course of execution of
the project works, Advance BFEW Consortium encountered hard rock
in the project area and for this purpose, shortlisted Respondent
No.5-Trenchless on account of their expertise in dealing with HDD
works through hard rock formations.
ii. That the HDD-works through these hard rock formations had been
carried out by Respondent No.5-Trenchless as certified by Advance
BFEW Consortium. In turn, HPCL too has confirmed the successful
completion of the HDD works.
iii. With respect to the BPCL Project, it was clarified that Respondent
No.5-Trenchless was the main contractor and Engineers India Ltd
was the Project Management Consultant (PMC).
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13. On 06-07-2021, the Petitioner No.1 addressed an email to BPCL
with a copy marked to Respondent No.3-Dy. Chief Engineer, inter alia
calling upon BPCL to confirm the BPCL Project Certificate issued by
Engineers India Ltd. BPCL by their email dated 07-07-2021, addressed
inter alia to the Respondent No. 3-Dy. Chief Engineer certified that the
contents of the BPCL Project Certificate issued by Engineers India Ltd. was
true, correct and genuine and also stating that the HDD work had been
undertaken by Respondent No.5-Trenchless in a professional manner with
a technical approach through a rock hardness factor in excess of 5 Mohs
and crushing value of more than 250 Mpa.
14. According to the Petitioners, they were shocked when they
received the impugned letter/email dated 13-07-2021 (impugned
termination letter) on email from the Respondent No.3- Dy. Chief Engineer,
inter alia, intimating them that the Petitioners had failed to submit the
requisite documents necessary to fulfill the mandatory tender condition and
therefore were disqualified from the e-Tender Project and that 10% of the
Security Deposit has been forfeited for the non-compliance.
15. On 14-07-2021, the Petitioners replied to the termination letter, inter
alia, denying the contents of the termination letter. In the said letter it was
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inter alia stated - (i) pursuant to the opening of Packets A and B, the
shortfall letter 09.03.2021 had been addressed to the Joint Venture and the
Joint Venture had replied to the same by providing the necessary
documents, (ii) the Undertaking executed by the Joint Venture was pursuant
to oral/telephonic requests and the same were submitted despite there
being no requirement to do so under the Tender Document, (iii) the opening
of Packet C thereafter and the declaration of the Joint Venture as the L-1
bidder meant that the Joint Venture had qualified, by providing the
necessary documents, (iv) that despite there being no necessity of
providing additional document from the governmental agencies with respect
to Respondent No.5-Trenchless' experience in HDD work and the fact that
the documents were already submitted (relating to HPCL Project) was
sufficient compliance with the eligibility criteria under the Tender Document
and that the Petitioners had submitted additional documents in the best
interest of the Project and to ensure transparency in documentation, (v)
attention of the Respondent No.3-Dy. Chief Engineer was drawn to the
contents of the email dated 26-06-2021, wherein detailed explanation
relating to Respondent No.5-Trenchless' role in the HPCL and BPCL
projects was highlighted, (vi) it was also pointed out that the BPCL has itself
addressed an email that was marked to Respondent No.3-Dy. Chief
Engineer inter alia certifying that the contents of the BPCL Project
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Certificate were true, correct and genuine, (vii) that the Respondent No.3-
Dy. Chief Engineer was therefore called upon to recall the termination letter.
16. By the impugned letter dated 28-07-2021 addressed to the
Petitioners, the Respondent No.3-Dy. Chief Engineer reiterated that the
Petitioners had failed to comply with the shortfall letter dated 09-03-2021
and inter alia stated that - (i) the Technical Experience certificate eligibility
criteria laid down in Clause 3 of Section 2 of the Tender Document was not
met by the Petitioners and the Petitioners had failed to rectify the shortfall
identified in the shortfall letter dated 09-03-2021 (ii) Packet-C had been
opened on the basis of the undertaking provided by the Joint Venture and
that the Joint Venture failed to submit the necessary documents to fulfill the
tender conditions (iii) the certificates submitted were neither issued by
HPCL or BPCL and that the BPCL Project Certificate in fact did not form the
part of Packet-B (iv) The work experience certificates are verified only if the
same are submitted during the tendering process and if they comply with
tender conditions.
17. An Affidavit-in-Reply has been filed by the Respondent No. 3- Shri
Bhagyawant V. Late, Deputy Chief Engineer (Storm Water Drains), Western
Suburbs, on behalf of the Respondent-Corporation. The
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averments/assertions made in the Affidavit-in-Reply, interalia, are - the
Petitioners are in effect challenging the technical eligibility criteria of the
Tender Document. It is settled position of law that the bidder who
participated in the e-Tender was precluded from challenging the e-Tender
conditions. The Petitioners are seeking relaxation in the Technical Eligibility
criteria, which is not permissible. The Petitioners have not impleaded two
other bidders viz.Eagle Mahalasa JV and Skyway and Speco JV, who have
fulfilled the qualification norms. The Petitioners were disqualified in the
technical evaluation and the aforesaid two bidders have fulfilled the same
and the said bidders ought to have been joined as party-Respondents and
in particular L-2 bidder ought to have been joined as party-Respondent. The
Petitioners have a remedy to approach the Internal Grievance Redressal
Mechanism (Internal Grievance Cell) formed by the Respondent-
Corporation for redressal of grievance wherein any bidder or prospective
bidder aggrieved by any decision can apply for review of the decision of
responsiveness in Packets A,B & C within a period of 7 days or such other
period as may be specified in the Bid Document. The Petitioners did not
meet the technical criteria and were in fact fully aware of this deficiency in
their Techno Commercial Bid. Though the Respondent Nos.2 and 4 would
have been justified in rejecting the said technical bid at the outset, however,
with a view to act with utmost fairness and transparency and in the interest
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of having more competitive bidding, the Respondent Nos.2 to 4 have given
ample time of about 4 months (from 09.03.2021 to 12.07.2021) to the
Petitioners to submit the requisite documents to prove that they meet the
eligibility conditions. However, despite ample opportunities to submit the
requisite documents, the Petitioners failed to fulfill the eligibility criteria and
the Respondent Nos.2 to 4 were justified to treat the Petitioners' bid as non-
responsive. The Respondents had issued the shortfall letter dated 09-03-
2021 to the Petitioners for non-compliance of the mandatory tender
condition. However, the Petitioners failed to submit the requisite documents,
and the documents submitted by the Petitioners for the HDD work did not
comply with the mandatory tender condition under Clause 3 of Section 2
and Technical Experience mentioned in Corrigendum XII & XIII. The tender
conditions clearly stipulated that the bidder should have completed the HDD
work in MCGM/Semi-Government/Government/Public Sector Organization.
The Petitioners were well aware that the HDD work experience certificate
submitted by them did not adhere to the tender conditions and hence the
Petitioners submitted an Undertaking requesting to open Packet-C and
declaring that the Petitioners will adhere to tender conditions for experience
of HDD work and will submit all the requisite documents in due course. The
Petitioners, however, again submitted a different work experience certificate
for HDD method from M/s.Engineers India Ltd. with an attempt to satisfy the
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requirements of the tender. The Certificate at Exhibit-O to the Petition
should have been issued by BPCL and the specifications for HDD work as
per the tender conditions are not mentioned in the certificate submitted by
the Petitioners. Therefore, both the work experience certificates for HDD
work submitted by the Petitioners were not as per requirments of the tender
conditions and therefore the Respondents had no other option but to
disqualify the Petitioners. The Petitioners were very well aware of the
shortfall in their bid and had accordingly submitted their Undertaking dated
05-04-2021 and despite giving adequate time of about 4 months (from
09-03-2021 to 13-07-2021), the Petitioners failed to submit the requisite
documents. Though the Petitioners allege that the HPCL had certified
successful completion of the HDD work, the HPCL had issued the work
completion certificate on the request of M/s.Advance BFEW Consortium as
its main contractor and there is no mention of Respondent No.5-Trenchless
in the said Certificate and the technical specification of HDD work for hard
rock having minimum hardness of 5 Mohs (Mohs Hardness Scale) and
strength of 250 Mpa (Mega Pascal) are not mentioned in the completion
certificate issued by HPCL to M/s.Advance BFEW Consortium. M/s.
Engineers India Ltd. is a PMC for BPCL Project as mentioned by the
Petitioners and till date the Petitioners have not submitted the work
completion certificate for HDD works with technical specifications from
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BPCL in favour of Respondent No.5 as its main contractor or officially
approved sub-contractor. In any event, the said work completion certificate
submitted by the Petitioners is not acceptable as it is not submitted as part
of the tender process and does not comply the tender conditions. The
shortfall letter dated 09.03.2021 was issued for lapses in the submission of
documents in Packet A & B, which is non-curable defect as per tender
conditions. Non submission of proper experience certificate is non-curable
defect as set out in Section 6 of the E-Tender Document. The Tender is in
larger public interest and National Green Tribunal (NGT) had issued notice
to the Respondents to take measures for curbing pollution of rivers/water
bodies/lakes in the jurisdiction of Respondents and relief granted to the
Petitioners would result in delaying a project of vital public interest, which is
necessary for protection of environment and will result in a huge cost and
time overrun and harm the interest of the residents of Mumbai.
18. An Affidavit-in-Rejoinder dated 07-09-2021 has been filed by the
Petitioners. The Petitioners have annexed as 'Exhibit A' to the Affidavit-in-
Rejoinder, a copy of Letter of Acceptance dated 01.02.2019 issued by
BPCL directly to the Respondent No. 5-Trenchless for the same work in
respect of which Engineers India Ltd. (PMC of BPCL) had issued the
Completion Certificate to Respondent No. 5-Trenchless. According to the
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Petitioners, this document puts and end to the controversy. The Petitioners
have annexed at Exhibit G and H to the Affidavit-in-Rejoinder, copy of
minutes of the Respondent-Corporation dated 03-06-2021 alongwith the
copy of the M/s TUSLP Consultants Scrutiny Report dated 12-05-2021,
which were received in response to an RTI application. The minutes dated
03.06.2021 is signed by several officers of the Respondent-Corporation
including the Respondent No.3-Dy. Chief Engineer. In the minutes, it is
recorded that M/s.TUSPL as an independent consultant had scrutinized all
documents uploaded by three bidders in Packets A & B and the three
bidders were found to be "responsive" as per the detailed scrutiny Report of
M/s.TUSPL. The said minutes records that the performance certificates
submitted by the tenderers are verified by respective authorities and the
Technical Advisory (TAC) formed for the said project have reviewed
Treatment Process Calculations, Work Methodology, related drawings,
respective submissions, etc. on 01-04-2021 through Video Conferencing,
which was attended by all the bidders, TAC Members, S.O., S.P. & SWD
officials and Consultant M/s.TUSPL. Exhibit "G" which is the Report of
consultant of the Project, M/s.TUSPL, is also signed by Officers of the
Respondent-Corporation including the Respondent No. 3-Dy Chief
Engineer, who is the deponent of Affidavit-in-Reply on behalf of the
Respondent-Corporation.
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19 The Petitioners have also annexed to the Affidavit-in-Rejoinder,
copies of letters dated 23rd June, 2021 and 20th July, 2021 addresed to L-2
Bidder, to show that the Respondent-Corporation had refunded the EMD to
the L-2 Bidder.
20. An Additional Affidavit dated 28-09-2021 is filed by Respondent No.
3-Dy.Chief Engineer, placing on record the Minutes dated 30-06-2021,
wherein it is stated that the Petitioners had neglected the follow up done by
office staff and failed to submit the requisite HDD experience certificate on
time and the bid of the Petitioners be treated as non-responsive and the
Petitioners be disqualified. An Additional Affidavit dated 29.09.2021 has
also been filed by the Petitioners and a further Additional Affidavit dated 4-
10-2021 has been filed by the Respondent-Corporation.
21. We have heard the learned Senior Counsel for the Petitioners and
the learned Senior Counsel for the Respondent-Corporation, who have
taken us through the contents of Petition, the Affidavits, correspondence
and other Exhibits. Learned Senior Counsel for the Petitioner has relied
upon the following judgments:
1. M/s. Konark Structural Engineers Pvt. Ltd. Vs Deputy Chief
Engineer (SWD) and Anr. (2018) SCC Online Bom 2559;
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2. State of Kerala vs Zoom Developers Private Limited, (2009)
4 SCC 563;
3. Balsara Home Products Limited vs Director General,
Directorate of General Suppliers & Transport, (2006) SCC Online
Del 34;
4. Godhra Electricity vs State of Gujarat, (1975) 1 SCC 199;
5. Acer India vs Central Bank,(2018) SCC Online Bom 1459;
6. Reliance Energy vs Maharashtra State Road Development
Corporation, (2007) 8 SCC 1;
7. Bharati Axa General Insurance Company vs Priay Paul,
(2020) 12 SCC 167;
8. Jayrajbhai Jayantibhai vs Anilbhai Nathubhai, (2006) 8 SCC
200;
9. Tata Cellular vs Union of India, (1994) 6 SCC 651;
10. Lal Somnath Singh vs Ambika Prasad Dube, (1949) SCC
Online All 23;
Learned Senior Counsel for the Respondent-Corporation, on the other
hand, has relied upon the following judgments:
1. Municipal Corporation Ujjan and Anr. vs BVG India Limited
& Ors., (2018) 5 SCC 462;
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2. Central Coalfields Limited & Anr. vs. SLL-SML (Joint
Venture Consortium) & Ors., (2016) 8 SCC 622;
3. Afcons Infrastructure Limited Vs Nagpur Metro Rail
Corporation Limited & Anr., (2016) 16 SCC 818;
4. The Bharat Coking Coal Ltd & Ors. vs AMR Dev Prabha &
Ors., Civil Appeal No. 2197 of 2020;
22. The entire controversy revolves around the 'documents' submitted
by the Joint Venture of the Petitioners to certify the technical experience of
Respondent No. 5 - Trenchless in Horizontal Directional Drilling (HDD)
works as specified in the e-Tender document and with whom the Joint
Venture of the Petitioners had entered an MOU as a technical service
provider for part of the Project.
23. It is necessary, at the outset, to have a look at the relevant clauses of
the Tender document. Section 1 of Tender document interalia stipulates that
the bid process is to comprise of 3-stage system. The relevant clause in
Section 1 reads as under:
"As per THREE Packet systems, the document for Packet A &
B is to be uploaded by the bidder vendors' document online in
Packet A, B. Packet A, B & C shall be opened on dates as
mentioned in header data. All the responsive and eligible
bidders if they so wish can be present at the time of opening of
bids in the office of Chief Engineer (SWD). The Packet C shall
be opened if bids submission in Packet A & B satisfies/includes
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all the requirements and same are found acceptable to the
Authority." (emphasis supplied)
24. Section 2 of the Tender document deals with the `Eligibility Criteria'.
The Eligibility Criteria is bifurcated into four categories - (1) Technical
Capacity; (2) Financial Capacity; (3) Technical Experience; and (4) Bid
Capacity. Insofar as (1) Technical Capacity, (2) Financial Capacity and (4)
Bid Capacity is concerned, there seems to be no issue. The controversy is
about # (3) Technical Experience. The Technical Experience is specified in
Clause 3 of Section 2 of the Tender document, as amended by
Corrigendum 12. It reads as under:
"Technical Experience
For assessing the technical capacity of bidder as per clause 1.(II)
similar work shall mean the completed works of laying Gravity / rising
main in sewage Network / SW drain network.
AND
The bidder shall have experience of providing and laying Sewer /
Water Petroleum / Gas line / Telecommunication cables / High Power
Cables by HDD (Horizontal Directional Drilling) in extremely hard
Rock having hardness factor not less than 5 (Mohs) and 250 Mpa
for the cumulative minimum length of 150 RM in completed or on-
going projects in MCGM / Semi Govt. / Govt. & Pubic Sector
Organizations during last seven (7) years.
OR
They should submit memorandum of understanding (MOU) with a
firm and the firm should have laying experience as per the
requirement given above either in his own capacity or as an official
approved Subcontractor. The tenderer has to submit all the
credentials of the firm with whom they are entering the MOU.
AND
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The bidder or technology provider shall have experience of carrying
out excavation by Pulse Plasma technology or any other similar
technology. The technology for rock excavation shall have zero shock
wave with permissible sound level & vibration velocity less than 1
mm/sec. The technology shall be certified by PESO (Petroleum &
Explosive Safety Organisation, India) as a non-explosive process.
(The contractor has to quote considering the site condition and no
extra/separate payment will be made for using Pulse Plasma or any
other similar technology for excavation in rock)."
25. Section 6 of the Tender document deals with 'Instructions to
Applicants". In the Note under the head - `Submission of Tenders', `Packet
B', it is stated -
"Note:
1. If it is found that e-tenderer has not submitted required documents in
Packet "B" then, the shortfall will be communicated to the tenderer through
e-mail only and compliance required to be made through email within a
time period of three working days (as specified in the departmental
email) otherwise tenderer will be treated as non-responsive."
26. Section 6 also sets out what is curable defect and non-curable
defect. Non-curable defect has been stated in section 6 of the Tender
document in the following terms:
"II. Non-curable Defect shall mean
a. In-adequate submission of EMD/ASD amount.
b. In-adequate of technical and financial capacity with respect to
Eligibility criteria as stipulated in the tender.
c. Wrong calculation of Bid Capacity.
d. No proper submission of experience certificates and other
documents etc."
(emphasis supplied)
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27. Section 9 specifies the General Condition of Contract, Clause 118
whereof, reads thus:
"118. The Bidder whose Bid is adjudged as responsive in terms technical
and financial requirements of this tenderer and who's assessed Bid Price is
the lowest, shall be declared as the selected Bidder (the Selected Bidder -
L1")".
28. Inasmuch as the Petitioners, who formed the Joint Venture, did not
possess one of the required technical experience i.e. with respect to
Horizontal Directional Drilling (HDD) for excavating hard rock formations
having a hardness factor of not less than 5 Mohs and 250 Mpa, the Joint
Venture of the Petitioners had executed an MoU dated 13-11-2020 with
Respondent No.5 -Trenchless, as technology service provider to the Joint
Venture relating to the HDD works required to be undertaken as part of the
Project. This was permissible under Clause 3 Section 2 of the Tender
document.
29. Having given our thoughtful consideration to the rival submissions
of the learned Counsel for the parties, we, prima facie, find that the entire
decision making process adopted by the Respondent-Corporation is
perverse, arbitrary and flawed and not in accordance with the mandatory
tender conditions. In the first blush, therefore, we were inclined to direct a
re-tender. We however note that the Project is a vital public project and is in
public interest and on a closer scrutiny of the facts and circumstances of the
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case, we are of the view that Respondent-Corporation needs to re-consider
its decision to disqualify the Joint Venture of the Petitioners by granting an
opportunity to the Petitioners to submit all relevant documents to satisfy the
Respondent-Corporation with regard to the certification of the technical
experience of the Respondent No. 5-Trenchless. We draw support from
such course adopted by the Supreme Court in Tata Cellular v/s. UoI
(supra) as evident from paragraph 155 of the said judgment.
30. Alongwith the submission of bid on 16-02-2021, the Joint Venture of
the Petitioners had in Packet B, submitted a Final Completion Certificate
dated 27-03-2018 issued by Advance BFEW Consortium, the main
Contractor for HPCL Project, certifying that Respondent No. 5-Trenchless
had completed the works of installation of Pipelines by HDD method at
various terrain in rock of more than 250 Mpa compressive strength. Under
the 'Note' in Section 6 (of the Tender document) reproduced above, it is
provided that if the tenderer has not submitted the required documents in
Packet 'B', the shortfall is to be communicated to the tenderer and
compliance is required to be made within 3 working days, else, the tender is
to be treated as non-responsive. Upon scrutiny of Packet B (and Packet A),
the Respondent-Corporation addressed the shortfall letter dated 09-03-
2021, interalia, pointing out that the Experience Certificate from employer
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as per tender condition was not submitted by the Petitioners. Pursuant to
the shortfall letter dated 09-03-2021, the Petitioners, on 11-03-2021 (i.e
within 3 days as required under the Tender document), interalia, submitted
Certificate dated 12-03-2021 issued by Advance BFEW Consortium in
favour of Respondent No.5-Trenchless, interalia, certifying that Respondent
No.5-Trenchless had successfully undertaken HDD works through rock
formation having hardness in excess of 5 (Mohs) for HPCL Project
(alongwith the same Final Completion Certificate issued by Advance BEFW
Consortium submitted earlier alongwith the bid). Without responding to the
said letter dated 11-03-2021, on 31-03-2021, the Respondent No. 3-Dy
Chief Engineer called upon the Petitioners to make a presentation of their
technical proposal in the form of not more than 20 slides in the format
circulated earlier, before the Technical Advisory Committee and the team of
officials of the Respondent-Corporation in a virtual meeting scheduled on
01-04-2021.
31. Under Clause 3 of Section 2 of the Tender document, the tenderer
has to submit all credentials of the firm with whom they are entering the
MOU. Under Section 1 of the conditions of Tender document, Packet C is to
be opened only if bids submission in Packet A & B satisfies/includes all the
requirements and same are found to be acceptable to the Authority. We are
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of the view that if the Respondent-Corporation was not satisfied with the
fresh documents submitted by the Petitioners on 11-03-2021 in compliance
with the shortfall letter dated 09-03-2021, the Respondent-Corporation
ought to have simplicitor rejected the bid of/disqualified the Petitioners at
the technical bid stage itself by treating the bid of the Petitioners as non-
responsive or atleast issued another letter calling for further compliances.
Instead, notwithstanding the aforesaid mandatory condition of the Tender
document, the Respondent-Corporation went ahead and processed the bid
of the Joint Venture of the Petitioners and the officials of the Respondent-
Corporation orally informed the Petitioners that they require an Undertaking
that the JV of the Petitioners would adhere to the tender conditions relating
to the experience required for HDD works and would submit all necessary
documents. Accordingly, the Petitioners submitted a letter/Undertaking in
the following terms:
"... ...
Due to current COVID conditions and restrictions, all Government
offices are working at low capacities and hence the process is getting
prolonged.
We hereby solemnly declare that we will adhere to the tender
conditions for experience of HDD work and will submit all the
necessary documents. We kindly request the authority to continue
with the Packet C opening of the above referred bids.
... ..."
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32. On 03-06-2021, four officers of the Respondent-Corporation
including Respondent No. 3-Dy Chief Engineer (the deponent of Affidavit-in-
Reply on behalf of the Respondent-Corporation), signed Minutes seeking
approval of the Chief Engineer (SWD) to open Packet C. In the said
Minutes, reference is made to the Scrutiny Report prepared by M/s TUSPL,
a consultant appointed by the Respondent-Corporation which found three
bidders, including the Joint Venture of Petitioners as 'responsive'. The said
Report also makes a reference to the Technical Advisory Committee (TAC)
formed by the Respondent-Corporation for the Project who is stated to have
reviewed the technical aspects of the bids on 01-04-2021 which was
attended by all the bidders, TAC members, Consultant M/s TUSPL and
various officials of the Respondent-Corporation. The relevant extract of the
Minutes dated 03-06-2021 reads thus:
"M/s TUSPL as a consultant have scrutinized al the documents
uploaded by the above bidders in Packet 'A' and 'B'. The detailed
scrutiny report prepared by M/s TUSPL, the evaluation report for
Packets 'A & B' is attached at Pg. No. C-53 to C-67 & C-87 to C-
105. All the above three bidders are found to be responsive as per
report of M/s. TUSPL, the consultant. Further the performance
certificates submitted by the tenderers are verified from respective
authorities. Also, the TAC formed for the said project have reviewed
the Treatment Process Calculations, Work Methodology, related
drawings and respective submissions etc. on 01.04.2021, through
Video Conferencing, which was attended by all the bidders, i.e. TAC
Members, S.O., S.P. & S.W.D. officials and Consultant M/s. TuSPL.
As per the MOM of TAC Meeting the submissions regarding all
technical specifications as mentioned and requirements of the
projejct as in the tender shall be adhered without change in cos as
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submisstted in price proposal are received from al the bidders on
same day attached at Pg. No. C-15 to C-19.
As the preparation of estimates for subject tender was
done long period back ie. almost two years back, it was felt
necessary to revise the estimates. Hence, as per directions of
Hon'ble AMC (P) the revidsed estimates were prepared after TAC
Meeting held on 01.04.2021 in order to realistically compare the
estimates with offers received for the tender. Accordingly, it is
proposed to open Packet C for work code WS-537 for Oshiwara-
Walbhat River.
In view of above, Dy.Ch.Eng (S.W.D.)W.S./Ch.Eng.
(S.W.D.)'s approval is requested to open the Packet 'C' on 04-
46.2021 of all the following responsive bidders for the work code
WS-537.
Sr. No. Name of the bidder
1 M/s Eagle Infra India Ltd. & M/S Mahalasa Constructions
Pvt. Ltd. (JV)
2 M/S Shapoorji Pallonji And Company Private Limited &
M/S Konark Structural Engineers Pvt. Ltd. (JV)
3 M/S Skyway Infraporjets Pvt. Ltd. & M/s Speco
Infraprojects Pvt. Ltd (JV)
Submitted please."
33. By another communication dated 03-06-2021, the Respondent-
Corporation informed the Petitioners that the opening of Packet C was
scheduled for 04-06-2021.
34. On 09-06-2021, the Respondent-Corporation informed the
Petitioners that the Packet C was opened on 04-06-2021 in presence of the
bidders' representatives and requested the Petitioners to provide cost
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break-ups, etc. The relevant extract of the said communication is
reproduced hereunder:
"You are requested to provide the cost breakups and justifications
of the individual items quoted and also as per the tender conditions of
the project has to be evaluated on Life Cycle Cost which include the
Capital Cost, Operational cost and Cost towards Net Power
Consumption at the installed capacity level. You are requested to
submit the cost bifurcation of the items or sub-works quoted by you in
the follwng format, which was also the part of the tender as per
Annexure-06 of the Corringendum-16".
35. By communication dated 11-06-2021, the Respondent-Corporation
informed the Petitioners that its JV is L-1 bidder and directed the Petitioners
to submit rate analysis. The said communication reads thus:
"Packet C of Word code WS-537 was opened on 04-06-2021 and
you are L-1 bidder for the said work. As per tender condition, you are
hereby directed to submit rate analysis (through email) of items for the
said work in the format annexed at 'Annexure D' and justification of the
quoted rates within 3 days from receipt of this email"
The Petitioners accordingly complied with the aforesaid communications
dated 09-06-2021 and 11-06-2021 of the Respondent-Corporation.
36. Notwithstanding all the above communications and
actions/compliances, the officials of the Respondent-Corporation,
thereafter, for the first time raised certain issues about requirement of a
Certificate on the letter-head of Government Organisation. The Petitioners
therefore, by communication dated 22-06-2021, recorded the above fact
and asserted that the Certificate submitted by them earlier fulfills the tender
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requirement. The Petitioners informed the Respondent-Corporation that the
Respondent No. 5-Trenchless is already in discussion with HPCL through
the main Contractor Advance BFEW Consortium in order to obtain the
necessary document, and will do the needful ASAP. The Petitioners also for
the first time forwarded a Certificate issued by Engineers India Ltd, a
Government organization, on its letter-head certifying that Respondent No.
5-Trenchless had completed the work of installation of Pipelines by HDD at
Thane Vashi Creek for BPCL Project. (the earlier documents submitted by
the Petitioners were in respect of HPCL Project)
37. By communication dated 24-06-2022 sent to the Respondent-
Corporation, the Petitioners submitted - (1) Letter of Intent dated 17-02-
2017 on the letter-head of HPCL in favour of Advance BFEW Consortium in
respect of Uran Chakan Shikrapur Pipeline (UCPSL Project), and (2)
Completion Certificate dated 13-05-2020 on the letter-head of HPCL
certifying that the work of UCSPL Project was awarded to Advance BFEW
Consortium.
38. On 26-06-2021, the Petitioners addressed a communication to the
Respondent-Corporation, interalia, pointing out that in respect of BPCL
project the Respondent No.5-Trenchless was the main contractor and the
Engineer India Ltd. was the Project Management Consultant (PMC).
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39 In the Additional Affidavit dated 28-09-2021, the Respondent No.3-
Deputy Chief Engineer, has annexed the office note dated 30-06-2021
reflecting the decision made by the Respondent No.2-Corporation with
respect to the disqualification of the Petitioners as well as a Chart of bid
evaluation. The relevant extract of the said office note reads as under:
"The representation of M/s Shapoorji Pallonji & Co. - Konark JV
was contacted telephonically on various occasions requesting them
to submit the HDD experience certificate of HDD work, however, they
have still not submitted the requisite certificate of HDD work. Even
after continuous follow up, representative of M/s Shapoorji Pallonji &
Co.-Konark JV bothered to give only an undertaking, stating that, the
necessary experience certificate of HDD method will be submitted
and requested to open Packet "C" (copy at page no. C/23)
The submitted undertaking was considered only in the interest
of fair competition and Packet "C" for the bid was opened on
04.06.2021. After opening of Packet "C", continuous follow up was
done with representative of M/s Shapoorji Pallonji & Co. - Konark JV
for submission of the requisite experience certificate of HDD method.
However, as the bidder M/s. Shapoorji Pallonji & Co. - Konark
JV has neglected the follow up done by this office staff and has failed
to submit the requisite HDD experience certificate on time, their bid
shall be treated as non-responsive.
In view of above, Ch.E.(S.W.D)/D.M.C.(infra)/A.M.C (P)'s
approval is requested, to disqualify M/s Shapoorji Pallonji & Co. -
Konark JV for bid no. 7100177428 i.e. for Oshiwara / Walbhat river &
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forfeit 10% of EMD amount for non compliance of experience
certificate as per tender condition."
and it is pointed out that the Chart shows the remark that "certification of
approved sub-contractor with mentioned required work experience as per
tender document needs to be provided."
40 On 06-07-2021, the Petitioner No.1 addressed an email to the
BPCL with copy marked to Respondent No.3-Dy.Chief Engineer, interalia,
calling upon BPCL to confirm the Certificate (BPCL Project) issued by
Engineers India Ltd.
41 It only after the above communications and actions/compliances,
the Respondent No.3-Dy.Chief Engineer, interalia, intimated to the
Petitioners by the impugned termination letter/email dated 13-7-2021 that
they had failed to submit the requisite documents necessary to fulfill the
mandatory condition and therefore they are disqualified from the project and
that 10% Security Deposit has been forfeited for non-compliance.
42. The central question that begs an answer is how could the
Respondent-Corporation, after opening packet-C and declaring the
Petitioners as "L-1" (Lowest Bidder), disqualify the Petitioners. It is noted
that the Petitioners had submitted a Certificate dated 30-10-2020 issued by
Engineer India Ltd., the Project Management Consultant (PMC) appointed
for BPCL project. In the said BPCL project, the Respondent No.5-
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Trenchless was appointed as main contractor for HDD work. By email
dated 06-07-2021, the Petitioners requested BPCL to confirm that the
certificate provided by Engineer India Ltd. to Respondent No.5-Trenchless
is for and on behalf of BPCL work only. Copy of the said email was marked
to Respondent No.3-Dy.Chief Engineer (SWD). The BPCL vide email dated
07-07-2021 certified that Respondent No.5-Trenchless had "executed ... ...
HDD works in professional very way with technical approach ... ... (with)
rock of hardness factor = 5 Mohs and crushing value = 250 Mpa for a
length more than 200 RMT." The BPCL also confirmed that certificate
issued to the Engineer India Ltd. (acting as BPCL Project Management
Consultant) was true and genuine. However, the Respondent-Corporation
has disregarded/not considered the said Certificate.
43. From the above, it is apparent that in the first instance, the
Respondent-Corporation and its officers did not see any issue in the
documents submitted by the Petitioners and found that the
shortfalls/deficiencies were curable, even after submission of fresh
documents by the Petitioners in compliance with the shortfall letter dated
09.03.2021. The Tender document condition as regards the technical
experience in Section 2 provides that for the "Eligibility Criteria' the tenderer
has to submit all credentials of the firm with whom they are entering the
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MOU with. The Respondent-Corporation and its officers have not raised
any grievance at any point of time as regards credentials of Respondent
No.5-Trenchless. In the Affidavit-in-Rejoinder, dealing with the credentials of
the Respondent No.5-Trenchless, the Petitioners have stated in paragraph
1-(xiii) to (xv):
"xiii. In any event, it is undeniable that Respondent No.5 is among
Asia's largest HDD Contractors, and has been providing its
trenchless services to the industry for nearly two decades. It has
carried out some of Asia's Largest HDD works in last 7 years. Some
of them are as under:
a. HDD work of India's Largest HDD crossing of 36" (900 mm
dia) X 2000 meters across Yamuna River, Yamuna Nagar
Haryana, India.
b. HDD Intersection drilling of 18" (450 mm dia) + 6" (150 mm
dia) X 2552 Mtr across Vashi Creek for BPCL.
c. HDD Intersection drilling of 18" (450 mm dia) + 6" (150 mm
dia) X 2530 Mtr across Manear River, Telangana India.
d. The criteria for HDD work in Length is only 200 running
meter. M/s.TESPL has carried out numerous HDD works for
Government Agencies ranging from 1700 RM to 2500 RM in
last 7 years.
e. It has the largest fleet in India comprising of 24 rigs
machines ranging from 40 tons to 500 tons.
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f. M/s. TESPL set a new record in India for the vertical Depth
of a River crossing using Horizontal Directional Drilling (HDD)
with 140 meters beneath the ground Level in Chambal River
work in 2015.
xiv. From the above it can be seen that, Respondent No.5 has
extensive experience in providing HDD services to numerous
government undertakings and agencies like HPCL, BPCL, GAIL, OIL,
ONGC, IOCL, IOAGPL and GTPL, all over the country. A copy of
Respondent No.5's performance brouchure is annexed herewith as
Exhibit"B". A list of the HDD works carried out and completed by
Respondent No.5 for Government Undertakings is also annexed as
Exhibit "C". Copies of completion certificates issued by various
governmental organizations are annexed as Exhibit"D". Photographs
and Paper Articles of work carried out for HDD work are annexed as
Exhibit "E".
xv. The Petitioners thus submit that they are fully qualified, as
required by the Tender terms and conditions, and have in place a
MoU with a firm (Respondent No.5) having laying experience as per
the MCGM's requirement as an officially approved Subcontractor. I,
therefore, deny that the Petitioners "failed to prove their eligibility for
technical capacity", as alleged or at all."
44 On the plain reading of said section 2 'Eligibility Criteria' of the
Tender document, we find that it is not categorically stated therein as to who
(whether the Government Organization or main Contractor) and in what
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manner or format the experience certificate of the sub-contractor (technical
provider) is required to be submitted. It cannot therefore, be ruled out that at
the time of submission of the bid, the Petitioners were under a bonafide
impression that the Certificate of the Contractor would suffice. We find that
the Officers of Respondent-Corporation had all along engaged and
continued to engage with the Petitioners and even opened Packet
believing that there was no issue so far as credentials of the Respondent
No.5-Trenchless is concerned and that the certification of the Respondent
No.5-Trenchless was a curable defect and more of a formality.
45. After taking an Undertaking from the Petitioners, the Respondent-
Corporation, in breach of the mandatory terms of the tender document,
went ahead and opened Packet C and not only declared the JV of the
Petitioners as responsive but also declared the Petitioners to be L-1 (lowest
bidder). Such a course was clearly impermissible, given the mandatory
condition of the Tender document that Packet C was to be opened only
upon the tenderer being held to be responsive after opening of Packet A &
B. When the tender condition was clear that Packet C was to be opened
only after the Authority was satisfied with the technical aspects in Packets A
& B, we are unable to accept the contention on behalf of the Respondent-
Corporation that the Respondent-Corporation went ahead with the opening
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of Packet C of the Petitioners only upon the Petitioners submitting an
undertaking that they would submit the documents. It is pertinent to note
that one of the non-curable defect as mentioned in section 7 is that "no
proper submission of experience certificate and other documents etc."
What is the proper document to be submitted is nowhere specified and left
to the discretion of the Respondent-Corporation. As a matter of fact even
the tender conditions do not categorically state that a Certificate would be
required from Government Undertaking/Organization, as indicated earlier.
46. From the material on record, it is evident that not only the
Petitioners came to be declared as L-1, but on 22 July 2021, the
Respondent No.3-Dy. Chief Engineer wrote to L-2 asking it to take back his
EMD, which it had given on 23-06-2021.
47. In light of the above and considering the manner in which the
Respondent-Corporation has conducted itself, we have no hesitation in
concluding that the Respondent-Corporation has acted arbitrarily and in
complete breach of the mandatory conditions of the tender document
bordering on perversity in the process of decision making.
48 We, however, note that though the Petitioners had earlier agreed to
submit certificate by HPCL, certifying Respondent No.5-Trenchless to be
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the sub-contractor, they were unable to submit the same. The Petitioners
have thereafter submitted documents in relation to BPCL Project and
forwarded copy of Certificate issued by Engineers India Ltd., [a Government
Undertaking and the Project Management Consultant (PMC) appointed for
BPCL Project] wherein Respondent No.5-Trenchless was appointed as sub-
contractor and has also forwarded their email to the Respondent No.3-Dy.
Chief Engineer certifying that Respondent No.5-Trenchless was the sub-
contractor for the BPCL Project. In the Affidavit-in-Rejoinder, the Petitioners
have annexed a copy of letter of acceptance issued by BPCL to
Respondent No.5-Trenchless for the work in respect of which Engineers
India Ltd. as a PMC had issued a Completion Certificate to Respondent
No.5-Trenchless. In the facts and circumstances of the case and more
particularly since the work to be undertaken by Respondent No.5-
Trenchless in respect of the project is of a highly technical nature, we
cannot by a writ of mandamus direct that the contract be awarded to the
Joint Venture of the Petitioners. The Respondent-Corporation being the
author of the Tender document would after all be the best person to
understand and appreciate the requirements and interpret the documents in
respect of certification of technical experience of the Respondent No.5-
Trenchless. (see Afcons Infrastructure Limited vs. Nagpur Metro Rail
Corporation Limited (supra). However, in the peculiar facts and
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circumstances of the case and the project being an STP project which is
stated to be a vital Public Project and in public interest, we are of the view
that the Petitioners ought to be granted one more opportunity to satisfy the
Respondent-Corporation as regards the documents certifying the technical
experience of Respondent No.5-Trenchless, which on the own showing of
the Respondent-Corporation was a curable defect.
49. Considering the nature of controversy involved and the order that
we propose to pass, it is not necessary for us to deal with all the judgments
cited by the learned Counsel for the parties.
50. Taking overall view of the matter, in our opinion, the following order
would meet the ends of justice:
ORDER
(i) The impugned letters dated 13 July 2021 and 28 July 2021
terminating the bid of the Joint Venture of the Petitioners and disqualifying
the Petitioners from the e-Tender are set aside.
(ii) The Petitioners are permitted to submit all documents pertaining to
the certification of technical experience of Respondent No.5-Trenchless to
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the Respondent-Corporation including documents which may not have
formed part of the bid document alongwith a covering letter, within two
weeks from today. On submission of the documents, the Respondent-
Corporation shall take a decision on the acceptability of the documents
expeditiously and in any event within a period of four weeks from the date
of submission of the documents, without being influenced by its earlier
decisions.
(iii) It would be open for the Respondent-Corporation to seek further
documents or clarifications from the Petitioners before taking a final
decision.
51 The Writ Petition is disposed of in the aforesaid terms.
Digitally signed
ANANT by ANANT
KRISHNA KRISHNA NAIK
Date: 2022.05.10
NAIK 18:15:21 +0530
(S.G. DIGE, J.) (A.A. SAYED, J.)
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