Valuable Edutainment Pvt. Ltd vs Municipal Corporation Of Greater ...
2022 Latest Caselaw 9339 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          ORDINARY ORIGINAL CIVIL JURISDICTION
            WRIT PETITION LODGING NO.23311 OF 2022

Valuable Edutainment Private Limited        )
A company incorporated under the            )
provisions of the Indian Companies,         )
Act, 1956 and having registered addressed   )
as 53/1, Media Infotek Park, Road No.7,     )
MIDC, Near Akruti Trade Centre,             )
Andheri (East), Mumbai-400093               )   ...        Petitioner

            Versus

1. Municipal Corporation of Greater         )
  Mumbai (M.C.G.M., a Public Body           )
  Incorporated under the Provisions of      )
  MMC, 1888 and having its office at        )
  Mahapalika Marg, Opp.CST Station,         )
  Mumbai - 400001.                          )


2. Education Department, MCGM,              )
  having their office at Triveni            )
  Sangam Municipal School, Mahadev          )
  Palav Marg, Curry Road (East),            )
  Mumbai - 400012.                          )


3. Cineom Broadcast India Limited           )
  A public limited company                  )
  incorporated under the provisions         )
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  of the Companies Act, 2013 having       )
  registered address at Unit 4C,          )
  4th Floor, Goldline Business Centre,    )
  New Link Road, Malad (West)             )
  Mumbai - 400064.                        )


4. HCIL Comtel Private Limited            )
  A company incorporated under the        )
  provisions of Indian Companies Act,     )
  1956 and having registered address      )
  at 01, Shivji Marg, Westend Greens,     )
  N.H. - 08, New Delhi - 110037           )


5. Gumbi Software Private Limited         )
  A company incorporated under the        )
  provisions of Indian Companies Act,     )
  1956 and having registered address      )
  45/13, Industrial Suburb, Yeshwanthpur, )
  Banglore - 560022, Karnataka            )    ...        Respondents

                  ---
Mr.Rafique Dada, Senior Advocate a/w Mr.Anil Anturkar, Senior
Advocate and Mr.Karl Tamboly, Mr.Ameet Mehta, Mr.Nirav Marjadi,
Ms.Digisha Modh, Ms.Srushti Mehta i/by M/s.Solicis Lex for the
petitioner.
Mr.Burhan Bukhari a/w Ms.Sheetal Metakari i/by Mr.Sunil Sonawane,
for the respondent Nos.1 and 2 M.C.G.M.
Mr.Venkatesh Dhond, Senior Advocate a/w Mr.Shadab Jan, Komal
Khushalani i/by M/s.Crawford Bayley and Co. for the respondent No.3.
                   ---
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                    CORAM                 : R.D. DHANUKA &
                                            KAMAL KHATA, JJ.

RESERVED ON : 26th August 2022 PRONOUNCED ON : 16th September 2022

Judgment :-(per R.D.Dhanuka, J.)

. By this petition filed under Article 226 of the Constitution of India, the petitioner prays for writ of certiorari for quashing and setting aside the evaluation of bids invited pursuant to the Bid Notification No.7200025560 published by the respondent nos.1 and 2 in favour of the respondent no.3 and against the petitioner.

2) The petitioner also seeks a writ of mandamus for a declaration that the respondent no.3 has been wrongly and unfairly declared as the successful bidder/lowest bidder and that the petitioner is entitled to be declared as the successful bidder/lowest bidder and that the petitioner is eligible for being awarded the contract/work order pursuant to the said Bid Notification. Some of the relevant facts for the purpose of deciding this petition are as under :-

3) On 18th January 2022, the respondent no.1 Corporation floated an E-Tender vide Bid Notification No.7200025560 for "Supply, Installation, Testing, Commissioning, Operation and Maintenance of Virtual Classrooms for Virtual Training Centres (VTC) & Studios for the respondent no.1 Schools for five years on VSAT (very-small-aperture terminal) Technology." The petitioner purchased the said tender document on 18th January 2022 and created their Vendor ID on the online portal of the respondent no.1.

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4)               The pre-bid Meeting was scheduled on 25 th January 2022

and was re-scheduled to 28th January 2022. The petitioner and the respondent nos.3 to 5 participated in the said pre-bid meeting and sought clarifications on various issues pertaining to the said tender. The petitioner raised about 27 queries by seeking information and clarification.

5) On 24th January 2022, 4th February 2022, 21st February 2022, 8th March 2022, 25th March 2022, 12th April 2022 and 12th April 2022, the respondent no.1 issued 7 Corrigendums respectively thereby rescheduling the pre-bid meeting and date for opening of financial proposals. On 4th May 2022, the respondent no.2 issued Corrigendum- VIII providing various clarifications sought by the respondent nos.3 to 5 and other bidders. According to the petitioner, the respondent no.1 also inserted a new clause in the "Technical Evaluation Criteria" in the said Corrigendum-VIII.

6) On 11th May 2022, the petitioner deposited an amount of Rs.1,82,91,500/- by way of Earnest Money Deposit (EMD) through an online payment portal of the respondent no.1. It is the case of the petitioner that on 13th May 2022, the petitioner in compliance of the said submissions, successfully uploaded and submitted packets 'A', 'B' and 'C' online as per clause 4.14 of the said Tender without facing any difficulties. It is the case of the petitioner that apart from the petitioner, there were two other prospective bidders who had submitted their bids without any technical malfunction or error before the due date i.e. 13 th May 2022 upto 4.00 p.m. ppn 5 wpl-23311.22.doc

7) It is the case of the petitioner that on 13th May 2022, just about 2 hours prior to closing time of the submission of bid, a Corrigendum-IX came to be issued by the respondent no.1 thereby extending the date and time of the bid submission. The same was rescheduled to 18th May 2022 by 4.00 p.m. It is the case of the petitioner that the said Corrigendum-IX was uploaded on the portal by the respondent no.1 Corporation only on 13 th May 2022 at 1.42 p.m. when the respondent nos.3 to 5 had already uploaded the requisite Tender Documents consisting of Packets 'A', 'B' and 'C'.

8) It is the case of the petitioner that the respondent no.3 did not submit bid till 4.00 p.m. on 18 th May 2022 which was the extended date and time for submission of bid as per Corrigendum-IX and cited some technical malfunction and error in uploading the bid. On 16 th May 2022, the respondent no.3 deposited its EMD amount. It is the case of the respondent no.3 that on 17th May 2022, the respondent no.3 uploaded packet 'A'. On 18th May 2022, the respondent no.3 could not upload their packets and sent an e-mail to the respondent no.1 pointing out directly.

9) It is the case of the petitioner that on 19 th May 2022, packets 'A' and 'B' were opened but name of the respondent No.3 did not feature in the list of bidders. On 23 rd May 2022, the respondent no.3 filed a writ petition bearing (L) No.16352 of 2022 in this Court seeking extension of time by two days for uploading packets 'A' and 'B' as they are unable to upload the same due to alleged technical malfunction and error of the portal of the respondent no.1 Corporation on 17th May 2022.

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10)           It is the case of the petitioner that on 18 th May 2022, the

respondent no.3 contended that they could not upload packet 'B' as there was error of "No User Certificate Available." The said writ petition was contested by the Municipal Corporation. The petitioner was not a party to the said writ petition filed by the respondent no.3. It is the case of the petitioner that the petitioner came to know about the said writ petition subsequently after the date of the order dated 27 th May 2022 was passed by this Court. On 27th May 2022, this Court passed an order in the said Writ Petition (L) No.16352 of 2022 permitting the respondent no.3 to upload/submit packets 'A', 'B' and 'C' on 30 th May 2022 by 4.00 p.m. and to declare the successful bidder on 1 st June 2022 in accordance with the Tender.

11) On 1st June 2022, the respondent no.3 mentioned the Writ Petition (L) No.16352 of 2022 before vacation bench for speaking to the minutes of the order dated 27th May 2022. By consent of parties to the said writ petition, this Court recorded that the date "30 th May 2022" shall be read as "3rd June 2022" and the date "1st June 2022 shall be read as "7th July 2022." Order dated 27th May 2011 was not uploaded on the website till then.

12). On 1st June 2022, the petitioner addressed a communication to the respondent no.1 and referred to the order dated 27 th May 2022 passed by this Court highlighting all the alleged discrepancies pertaining to the bid submissions made by the respondent no.3. The petitioner also highlighted the alleged malpractices of the respondent no.3 in not following the directions issued by this Court. On 3 rd June 2022, the respondent no.3 submitted its sealed cover of bid to the respondent no.1 ppn 7 wpl-23311.22.doc

Corporation. On 8th June 2022, the respondent no.1 requested the petitioner to submit shortfall documents of packet 'A' in form of hard copy as there was shortfall in documents in packet 'A.' On 10 th June 2022, the petitioner submitted shortfall documents to the respondent no.1 which were uploaded earlier in packet 'A' on the online portal of the respondent no.1.

13) On 13th June 2022, the respondent no.1 requested the petitioner to submit documents of packet 'B' by way of hard copy as there was shortfall in documents in packet 'B.' The petitioner accordingly submitted the shortfall documents on 16th June 2022 which were earlier uploaded in packet 'B' on the online portal of respondent no.1. On 23 rd June 2022, the respondent no.1 intimated the petitioner that the Presentation-cum-Demonstration and the Proof of Concept was scheduled on 29th June 2022. The petitioner on 27th June 2022 was informed regarding revised schedule of the Presentation-cum-Demonstration and the Proof of Concept on 30th June 2022.

14) According to the petitioner, the petitioner had installed two VSAT dishes for two different satellite bandwidths to demonstrate the capability of their platforms which were capable of working on two different bandwidths i.e. KU bandwidth and XC bandwidth. According to the petitioner, the respondent no.3 had installed only one Dish of KU bandwidth. The respondent no.3 had sent an e-mail on 29th June 2022 insisting that the proposed solution for proof of concept based on KU bandwidth must also be presented on same bandwidth. The second dish of the XC bandwidth was thereafter brought and installed by the respondent no.3 for the Proof of Concept. According to the petitioner, ppn 8 wpl-23311.22.doc

even after installation, the said second dish of the XC bandwidth installed by the respondent no.3 did not function. The respondent no.1 Corporation cancelled the Presentation-cum-Demonstration and the Proof of Concept on 30th June 2022.

15) It is the case of the petitioner that the said presentation was cancelled in order to give chance and provide undue favour to the respondent no.3. The respondent no.1 vide e-mail dated 30 th June 2022 stated that the relevant documents/ reports should be submitted by the bidder on or before 1st July 2022 till 4.00 p.m. and the bidder should have experience with active operation of VSAT based audio-video interactive platform at live locations/sites/ classrooms.

16) It is the case of the petitioner that the said e-mail of 30 th June 2022 asking for the same information with a revised due date of 1st July 2022 was to favour the respondent no.3 as the other bidders had already submitted packet 'A', 'B' and 'C' before the submission date and time as per Corrigendum-VIII i.e. 30th May 2022 by 4.00 p.m.

17) On 1st July 2022, the petitioner addressed an e-mail and hard copy of the letter to the respondent no.1 indicating the petitioner's experience in active operation of VSAT based on audio video interactive platform and that all the documents submitted were already a part of official submissions of packets 'A' and 'B' by the petitioner. On 4 th July 2022, the petitioner sent an e-mail and letter to the respondent no.1 requesting them to provide with the details of date and time for the Presentation-cum-Demonstration and the Proof of Concept. On 4th July 2022, the respondent no.1 replied that the said Presentation-cum-

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Demonstration and the Proof of Concept was then scheduled on 6 th July 2022 at 2.00 p.m. On 6th July 2022 at 3.30 p.m., the said Presentation- cum-Demonstration and the Proof of Concept commenced after considerable delay without any justifiable reasons.

18) On 7th July 2022, the petitioner vide e-mail and letter requested the respondent no.1 for opening of the financial bid in consonance with the order dated 27th May 2022 read with the order dated 1st June 2022 and thereby directed the respondent no.1 to open the financial bid in packet 'C' on 7th July 2022.

19) On 8th July 2022, the respondent no.1 informed the petitioner about the date, time and place of the opening of the financial bid. The respondent no.1 opened the financial bid on 11th July 2022 and marks were declared in the presence of all the Technically Qualified Bidders. The respondent no.3 was declared as L1. It was declared in the said meeting that the respondent no.3 had scored the highest composite marks and had emerged as the lowest bidder. The petitioner scored 97.79 marks and was placed at 2nd rank whereas the respondent no.3 scored 99.19 marks and was placed at 1st rank. On 12th July 2022, the petitioner made a representation to the respondent no.1 alleging favouritism in favour of the respondent no.3.

20) On 13th July 2022, the petitioner addressed a letter through its advocate to the respondent no.1 to recall the evaluation and marking process and threatened to file the proceedings before this Court. On 19 th July 2022, the petitioner filed this petition for various reliefs. The writ petition is opposed by the respondent no.1 Corporation and by the ppn 10 wpl-23311.22.doc

respondent no.3 i.e. successful bidder.

21) Mr.Dada, learned senior counsel for the petitioner invited our attention to various provisions of the bid documents and exhibits annexed to this petition including the orders passed by this Court in the said Writ Petition (L) No.16352 of 2022. It is submitted that the last date and time for online submission of packets 'A', 'B' and 'C' was extended on 6 occasions vide Corrigendum-I to VII without assigning any reason. The last date and time for online submission of packets 'A', 'B' and 'C' vide Corrigendum-VIII dated 4th May 2022 was 13th May 2022 on or before 4.00 p.m. The said schedule was also extended by 5 days till 18th May 2022 on or before 4.00 p.m. vide Corrigendum-IX dated 12 th May 2022. The said Corrigendum-IX was published only on 13th May 2022 at 1.42 p.m. i.e. to say barely 2 hours before the earlier scheduled deadline. He submitted that the respondent no.3 admittedly submitted their online bid not within the original stipulated date.

22) Learned senior counsel invited our attention to Clauses 4.7, 4.8, 4.15, 4.17 to 4.20 and 4.22 of the bid documents. He submitted that respondent no.1 deliberately extended the date of submitting bid to favour the respondent no.3. On 19th May 2022, the packets 'A' and 'B' of all the bidders were opened. Name of the respondent no.3 did not feature in the list of bidders. It is submitted that the respondent no.3 filed a writ petition in this Court only on 23rd May 2022. It is submitted that the respondent no.3 falsely contended that though it made an attempt to upload packet 'B' on 17th May 2022 after uploading packet 'A' documents online, was unable to do so because of technical malfunction of the portal. The respondent no.3 allegedly tried to upload packet 'B' again on ppn 11 wpl-23311.22.doc

portal on 18th May 2022, however, the portal showed the error "No User Certificate Available."

23) Learned senior counsel invited our attention to the order dated 27th May 2022 passed by this Court in Writ Petition (L) No.16352 of 2022 and submitted that the petitioner was not impleaded as party respondent in the said writ petition. The Municipal Corporation did not point out to this Court about the technical bid of the petitioner already having been opened on 19th May 2022.

24) It is submitted by the learned senior counsel that this Court by the said order dated 27th May 2022 directed the petitioner to upload/ submit packets 'A', 'B' and 'C' to the respondent no.1 Corporation on 30th May 2022 by 4.00 p.m. and directed the respondent no.1 to accept those packets from the respondent no.3. This Court directed the respondent no.1 Corporation to consider the bid submitted by the petitioner (respondent no.3 herein) along with the other bidders and to open the financial bids of all the bidders on 1 st June 2022 by 4.00 p.m. and declare the successful bidder in accordance with the Tender.

25) It is submitted by the learned senior counsel that the respondent no.3 thereafter appears to have filed praecipe in the said writ petition for speaking to the minutes of the order dated 27 th May 2022 passed by this Court. The respondent no.3 and the Municipal Corporation obtained a consent order thereby correcting the date "30 th May 2022" mentioned in paragraph 15(i) as "3rd June 2022" and date "1st June 2022" mentioned in paragraph 15(iii) as "7 th July 2022." It is submitted that even on 1st June 2022, the respondent no.1 Corporation did not inform ppn 12 wpl-23311.22.doc

this Court that the packet 'A' of the petitioner was already opened on 19th May 2022.

26) Learned senior counsel invited our attention to the communication dated 3rd June 2022 from the respondent no.1 to respondent no.3 informing that the envelopes received by the respondent no.1 from the respondent no.3 i.e. bid packets 'A', 'B' and 'C' were seal intact and not opened till date. As per the order passed by this Court, the opportunity to submit the bid was made available through S.R.M. The respondent no.3 was directed to take back these packets as early as possible.

27) Learned senior counsel invited our attention to the averments made in paragraph 15 of the affidavit-in-reply filed by the respondent no.1 alleging that portal was opened on 3 rd June 2022 and 4th June 2022 to enable the petitioner to upload the documents. He submits that as far back as on 30th May 2022, the IT department had already evaluated the technical proposal of the petitioner. It is submitted that since identity of the packets of all the bidders had to be ensured but was not ensured, the entire tender process was vitiated. Since the respondent no.3 was not qualified and had not satisfied the eligibility criteria, financial bid of the respondent no.3 could not have been opened. Evaluation of bid of the respondent no.3 was not correct. The explanation of the respondent no.3 in paragraph 26 of the affidavit-in-reply filed by it is not sufficient.

28) Learned senior counsel invited our attention to pages 537 to 540 in respect of the marks and ranking allotted to all the bidders. He submitted that in so far as the marks based on experience out of 10 marks ppn 13 wpl-23311.22.doc

is concerned, the petitioner was given 10 marks whereas the respondent no.3 was given 5 marks. The total marks scored by the petitioner was 87.99 out of 100 whereas the respondent no.3 was 89.50 marks and was place at 1st rank. He submits that since the respondent no.3 did not have any experience and did not produce any documents to show its experience in accordance with the bid documents, the respondent no.3 could not have been given 5 marks at all under the said head. If 5 marks given under the head of 'experience' to the respondent no.3 are deleted, the petitioner would have to be given more total marks than the respondent no.3. The tender process was not carried out in a transparent manner. The respondent no.1 Corporation had asked for documents even after opening of technical bids to favour the respondent no.3.

29) It is submitted that since participation of the respondent no.3 in the interactive session meeting held by the Corporation was missing, the respondent no.3 ought to have been given "0" marks. No proof was given by the respondent no.3 in support of what is now stated in paragraph 8(b) of the affidavit-in-reply of the respondent no.3. The respondent no.3 had not satisfied the qualification criteria. Since no evidence of the Government project undertaking was produced by the respondent no.3, 3 marks could not have been given to the respondent no.3 under the said head. The petitioner had already raised grievance in this regard on 12th July 2022.

30) Learned senior counsel invited our attention to the averments made by the petitioner and more particularly in paragraph 12 in the affidavit-in-rejoinder alleging that marking process of the Corporation was biased and unfair as it erred in awarding 5 marks to the respondent ppn 14 wpl-23311.22.doc

no.3 for allegedly having experience of active operation of VSAT based Audio-Video interactive platform at live locations/sites/classrooms which in fact should have been "0". Learned senior counsel submitted that the petitioner was not able to make any comment on the correctness of the orders passed by this Court on 27th May 2022 and 1st June 2022 in Writ Petition (L) No.16352 of 2022 filed by the respondent no.3 in these proceedings and would adopt appropriate proceedings, if advised to challenge the said orders.

31) Mr.Dhond, learned senior counsel for the respondent no.3, on the other hand, submitted that the petitioner has participated in the entire tender process even after having knowledge of the orders passed by this Court in the writ petition filed by his client without impugning the said orders at any stage. In support of this submission, learned senior counsel invited our attention to the letter dated 1 st June 2022 addressed by the petitioner to the respondent no.1. In the said letter, the petitioner had referred to the order dated 27th May 2022 passed by this Court in the said Writ Petition (L) No.16352 of 2022 filed by the respondent no.3. The petitioner, however, neither bothered to challenge the said order nor applied for vacating the said orders passed by this Court.

32) It is submitted that the said orders passed by this Court in the said writ petition filed by the respondent no.3 were subsequently implemented by the respondent no.1 and accepted by all the bidders including the petitioner. Time line schedule earlier fixed by the Corporation prior to the date of the said orders passed by this Court permitting the respondent no.3 to submit bid documents and extending the time based on the said orders was acted upon by all the bidders ppn 15 wpl-23311.22.doc

including the petitioner. The petitioner now cannot be allowed to raise any dispute in respect of the Corrigendums issued by the respondent no.1 before passing of the said orders passed by this Court or even thereafter.

33) In support of this submission, learned senior counsel placed reliance on the judgment of this Court in case of Adani Ports and Special Economic Zone Limited Vs. Board of Trustees of Jawaharlal Nehru Port Authority & Ors., 2022 SCC OnLine Bom 1326 and the judgment of the Supreme Court in case of Jagdish Mandal Vs. State of Orissa and Ors., (2007) 14 SCC 517.

34) In so far as the marks allotted to the petitioner and the respondent no.3 based on 'experience' is concerned, learned senior counsel invited our attention to the averments made by the petitioner in ground (j) of the petition. These averments were denied by the respondent no.3 in the affidavit-in-reply. He invited our attention to clause (iv) of page 221 of the petition showing 'Evaluation Criteria' in so far as the experience is concerned. The maximum marks under the said criteria prescribed were 10 based on experience with active operation of VSAT based audio-video interactive platform at live locations/sites/ classrooms. He also placed reliance on affidavit-in-reply filed by the Municipal Corporation acknowledging the experience of the respondent no.3.

35) Learned senior counsel invited our attention to the averments made by the respondent no.3 in the affidavit-in-reply dated 28 th July 2022 on this aspect and more particularly in paragraphs (A) to (D). The respondent no.3 had executed various works including "Virtual Classroom based on 2 Way Satellite Communication" for 150 ITI ppn 16 wpl-23311.22.doc

Government Colleges in the state of Karnataka connected to 4 studios at 4 different locations of Karnataka. The respondent no.3 had also executed such works with multi HUB operations in Maharashtra and Uttarakhand. The respondent no.3 had active operation of VSAT based audio-video interactive platform at 4500 live locations/sites for Business Broadcast News Private Limited and Swaraj Marathi Broadcasting LLP.

36) Learned senior counsel for the respondent no.3 invited our attention to the averments made by the petitioner itself in grounds (j) and (k) of the petition contending that the petitioner was entitled to be awarded full 10 marks whereas the respondent no.3 would have been entitled to be awarded only 5 marks under the head "active operation." He submits that the petitioner thus cannot be allowed to urge that the respondent no.3 could not have been awarded 5 marks under the said head at this stage contrary to the averments made by the petitioner itself in the writ petition. Learned senior counsel also placed reliance on the affidavit-in-reply filed by the Municipal Corporation and submitted that the Municipal Corporation has justified having granted 5 marks at this account to the respondent no.3.

37) In so far as the financial bid of the respondent no.3 is concerned, it is submitted by the learned senior counsel that the financial bid of the respondent no.3 was found more competitive than the petitioner. Price bid of the respondent no.3 was admittedly lower than the price bid of the petitioner.

38) In so far as the issue of Corrigendums issued by the respondent no.1 raised by the petitioner is concerned, learned senior ppn 17 wpl-23311.22.doc

counsel submitted that the Municipal Corporation had right to issue such Corrigendums from time to time as provided in the said bid documents. The petitioner had never challenged the issue of Corrigendums which were necessitated to be issued by the Municipal Corporation due to various reasons. He submits that allegation of the petitioner that the technical bid of the petitioner was already opened and the Municipal Corporation had access to all the data submitted by the petitioner before opening the technical bid of the respondent no.3 and thus such information would have been parted with the respondent no.3 is totally baseless and without any merit. He submits that all the bids had to be opened together. The Municipal Corporation could not have access to any bid/bids earlier to the date of opening schedule by the Corporation. One of the Corrigendums was issued by the Municipal Corporation to favour the respondent no.3 as sought to be canvassed by the petitioner is baseless.

39) In so far as the cancellation of the Presentation-cum- Demonstration and the Proof of Concept by the Municipal Corporation is concerned, it is submitted that the Municipal Corporation has cancelled the Presentation-cum-Demonstration and the Proof of Concept since the staff of the Municipal Corporation was not ready on the schedule date. The allegation of the petitioner on granting extension of time to submit the bid documents by issuing Corrigendums allegedly to favour the respondent no.3 is totally vague and baseless. This Court accepted the submission made by the respondent no.3 that due to technical glitch, the respondent no.3 was not able to upload packet 'B' on the stipulated date.

40)         It is submitted that the findings rendered by this Court in the
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said writ petition filed by his client having been acted upon by all the parties including the petitioner, the arguments advanced by the petitioner challenging the Corrigendums issued by the Corporation to favour the respondent no.3 at this stage cannot be permitted. He submitted that this Court had asked the petitioner to submit its financial bid in a sealed cover. The said order dated 27th May 2022 passed by this Court was not immediately uploaded. The respondent no. 3 was thus required to file praecipe on 1st June 2022 for seeking clarification. The dates mentioned in the said order were required to be corrected by speaking to the minutes of the said order. The said order was uploaded on 2 nd June 2022. The Municipal Corporation had issued one of the Corrigendums after the order passed by this Court came to be uploaded.

41) Mr.Bukhari, learned senior counsel for the Corporation submitted that scope of interference of this Court in all tender matters under Article 226 of the Constitution of India is very limited. Various disputed question of facts are involved in these matters. He tendered written arguments along with dates & events. He relied upon the following judgments of the Supreme Court:-

(i) Agmatel India Private Limited Vs. Resoursys Telecom & Ors., 2022) 5 SCC 362 (paragraphs 24 to 30) ;

(ii) Uflex Limited Vs. Government of Tamil Nadu & Ors., (2022) 1 SCC 165 (paragraph 42);

(iii) Jagdish Mandal Vs. State of Orissa and Ors.(supra).

42) It is submitted by the learned senior counsel that the bids were to be submitted in three envelopes i.e. Packet 'A', Packet 'B' and Packet 'C.' Technical bids were scrutinised and evaluated by the IT ppn 19 wpl-23311.22.doc

department of the Corporation. Under Clause 4.7 of the tender document, Corrigendums were issued and date of submitting tenders was extended. Such Corrigendums were validly issued and accepted by all the bidders including the petitioner. The technical bids were evaluated by the Bid Evaluation Committee and marks were accordingly awarded as per specifications of the tender and Corrigendum. Commercial bids were opened on 11th July 2022. On the basis of the composite marks of evaluation of Technical Score and Financial Evaluation, the respondent no.3 was declared as L1 wherein the petitioner was declared as L2.

43) Since the suggestion was received from all the prospective bidders about last date of submission of bid, Corrigendum was issued on 24th January 2022 extending time and for pre bid meeting. Various queries were raised by the bidders seeking clarification in the pre bid meeting. About 200 queries were received by the Corporation in the pre bid meeting which was attended by the petitioner as well as the respondent nos.3 to 5. Various clarifications/suggestions and additional information from respective bidders were received which necessitated issuance of Corrigendums. Corrigendum-VIII was issued with all necessary amendments in the tender. All the bidders took benefits of the extension of date and time as per Corrigendums. The petitioner never raised any objection at any time about issuance of Corrigendum-I to VIII and participated in the tender.

44) The Corporation had received e-mail from the petitioner and other prospective bidders on 12th May 2022 pointing out that in Corrigendum-VIII, though there was a reference to "Technical Specification 1 attached," same was not attached with Corrigendum-VIII ppn 20 wpl-23311.22.doc

and requested to provide the specification and to extend the time by issuing new Corrigendum. The respondent no.1 accordingly issued Corrigendum-IX dated 12th May 2022 published on 13th May 2022 issuing clarification regarding Technical Specification 1 and thereby extending the date of tender.

45) On 13th May 2022, the petitioner uploaded and submitted packets 'A', 'B' and 'C'. On 17th May 2022, the petitioner uploaded additional documents as per extended time granted under Corrigendum- IX and taking benefits of Corrigendum-IX.

46) Learned senior counsel for the Corporation also placed reliance on the order passed by this Court and the findings recorded therein about the inability of the respondent no.3 to upload packet 'B' on the portal and the correspondence exchanged between the petitioner and the Corporation seeking extension of time. On 20th May 2022, a letter for seeking extension of time was sent to the grievance committee.

47) It is submitted that on 19th May 2022, as per Corrigendum- IX, packets 'A', 'B' and 'C' of the petitioner and other bidders were to be opened. On 20th May 2022, packets 'A', 'B' with documents of all the bidders i.e. the petitioner and the respondent nos. 4 & 5 were sent to IT Department for their scrutiny. On 27 th May 2022, the writ petition filed by the respondent no.3 and was argued by all the parties to the said writ petition. The order was reserved by this Court. The order was not dictated in open Court. It is submitted that packet 'A' scrutiny report was received from IT Department of the Corporation in respect of the petitioner and the respondent nos.4 & 5 by the Corporation on 30 th May 2022. On 8th ppn 21 wpl-23311.22.doc

June 2022, the Corporation sent an e-mail to the petitioner and the respondent nos.4 & 5 for seeking compliance of short fall of the documents in packet 'A.'

48) It is submitted that the order dated 27 th May 2022 was uploaded on 31st May 2022. The respondent no.3 was directed to upload the packets 'A', 'B' and 'C' on 30 th May 2022 by 4.00 p.m. The Corporation was to open the said packets on 1 st June 2022. The respondent no.3 submitted a hard copy of packets 'A', 'B' and 'C' in a seal envelopes at the dispatch Counter of the Education Department on 31st May 2022. However, since this Court directed the respondent no.3 to upload the said three packets on 30 th May 2022 and the same was submitted on 31st May 2022, the same was not accepted. The respondent no.1 Corporation sent an e-mail to the respondent no.3 on 1 st June 2022 pointing out that packets 'A', 'B' and 'C' would not be accepted. The matter was accordingly mentioned before this Court on 1st June 2022 by the respondent no.3. This Court accordingly corrected the said order dated 27th May 2022 and allowed the respondent no.3 to upload their packets 'A', 'B' and 'C' by 4.00 p.m. and directed to open financial bid on 7th July 2022.

49) It is submitted by the learned senior counsel that on 1 st June 2022, the Corporation issued Special Corrigendum mentioning the order dated 1st June 2022 passed by this Court in the writ petition filed by the respondent no.3 to submit packets 'A', 'B' and 'C' between 2 nd June 2022 and 3rd June 2022 by 4.00 p.m. Learned senior counsel tenders a copy of the said Special Corrigendum. The respondent no.3 accordingly uploaded packets 'A', 'B' and 'C' on 2 nd June 2022 and were checked ppn 22 wpl-23311.22.doc

on 3rd June 2022 by the respondent no.1 Corporation. On 4 th June 2022, packets 'A' and 'B' of the respondent no.3 were opened. Packet 'A' documents were sent to IT Department on 4th June 2022.

50) On 7th June 2022, the scrutiny report of packet 'A' of the respondent no.3 came to be received from IT Department. On 8th June 2022, the respondent no.1 Corporation sent an e-mail to all the four bidders i.e. the petitioner and the respondent nos.3 to 5 about short fall of the documents in packet 'A' and directed to submit the same on or before 13th June 2022. On 8th June 2022, scrutiny report of packet 'B' of the petitioner and the respondent nos.4 & 5 was received from IT Department of the Corporation. On 10 th June 2022, packet 'B' documents of the respondent no.3 was submitted for scrutiny to the IT Department. Consolidated scrutiny report for packets 'A' and 'B' received from the IT Department of the Corporation on 10th June 2022.

51) The petitioner submitted shortfall documents of packet 'A' and their clarification on 10th June 2022 and 13th June 2022. The respondent no.3 submitted shortfall document of packet 'A' on 13 th June 2022. On 13th June 2022, the final scrutiny report of packet 'A' and scrutiny of packet 'B' were received from IT Department of all the bidders. The petitioner as well as other bidders submitted shortfall documents of packet 'B' thereafter. On 22 nd June 2022, the petitioner and other two bidders submitted undertaking.

52) It is submitted that the Presentation-cum-Demonstration and the Proof of Concept was scheduled on 29th June 2022 which was evaluated by Bid Evaluation Committee comprising of (i) Director IT;

ppn 23 wpl-23311.22.doc

(ii) Education Officer (Primary); (iii) Education Officer (Secondary); (iv) Deputy Education Officer (VTC); (v) Manager IT; & (vi) Deputy Chief Accountant (Education Fund). The said presentation however, was postponed to 30th June 2022. No presentation was held on 29th June 2022. It is submitted that on 30th June 2022, Bid Evaluation Committee discussed various issues regarding successfully qualifying bidders on the basis of each criteria. On 1 st July 2022, the petitioner submitted documents.

53) It is submitted that on 6th July 2022, the Presentation-cum- Demonstration and the Proof of Concept was rescheduled to 6 th July 2022 after confirmation of availability of all the Committee members. Each bidder was allotted separate room for installation and presentation and no other bidder was allowed to interrupt others. There was no access to any person to enter the room allotted to the bidder except member of Bid Evaluation Committee. The Bid Evaluation Committee considered the Presentation-cum-Demonstration and the Proof of Concept of each of the bidders and allotted marks to all the bidders on 6th July 2022.

54) It is submitted that a proposal was moved to Additional Municipal Commissioner (Eastern Suburb) for sanction of opening of packet 'C' as per order passed by this Court on 7 th July 2022. On 8th July 2022, mail was sent to the petitioner as well as the respondent nos.3 to 5 for opening of packet 'C' on 11th July 2022 as there was holiday on 9th and 10th July 2022 being Saturday and Sunday. The Commercial Bid was opened to follow the proper steps with accuracy more particularly when the project is of heavy budget and having for reaching impact of quality of education.

 ppn                                  24             wpl-23311.22.doc


55)          It is submitted that on 11 th July 2022, the financial bid

was opened by the Corporation in the presence of and by the consent of the petitioner and the respondent nos.3 to 5 and marks were declared in presence of all bidders. The respondent no.3 was declared L1 and the petitioner was L2. No objection was raised by the petitioner regarding tender process and evaluation of marks by Bid Evaluation Committee. The respondent no.3 was lowest bidder as had quoted Rs.84,07,00,001/- as compared to the petitioner who quoted Rs.90,75,06,239/-. Thus there was difference was Rs.6,68,00,000/- approximately between the bids submitted by the petitioner and the respondent no.3. He submitted that on the basis of composite marks evaluated of technical score and financial evaluation, the respondent no.3 was declared as L1 whereas the petitioner was declared as L2.

56) Learned senior counsel invited our attention to Clauses 4.6, 4.7 and 4.11 of the Tender Document in support of the submission that the Corporation has right to issue amendment of the bid documents by issuing Corrigendums from time to time. It is submitted that admittedly, marks scored by the petitioner based on the technical bid was more than the marks scored by the respondent no.3. There was no question of manipulation or sharing of technical data of the petitioner by the Corporation or any other bidder. The petitioner scored 10 marks whereas the respondent no.3 scored 5 marks in the technical bid. Commercial bids were opened in presence of all the bidders. Technical bid marks were declared before opening of the Commercial bid. No objection was raised by any bidder when the marks were declared. The Municipal Corporation had acted in a complete transparent manner in the entire tender process.

 ppn                               25                wpl-23311.22.doc


57)         Mr.Dada, learned senior counsel for the petitioner in

rejoinder arguments submitted a brief note for consideration of this Court. He submitted that at the last moment, extension was granted by Corrigendum-IX which was just 2 hours before closure of the submission bid on 13th May 2022. The said 2 hours were not enough for uploading packets 'A', 'B' and 'C'. At that stage, bids of the petitioner and the respondent nos.4 & 5 was already in the system. Municipal Corporation had access to the same. No attempt was made by the respondent no.3 to upload even their respective packets within the time prescribed. The respondent no.3 and the Corporation obtained consent order from this Court on 1st June 2022 by allowing the respondent no.3 to submit/upload on 3rd June 2022 and to open Commercial bid on 7th July 2022.

58) It is submitted that if 3 marks awarded by Bid Evaluation Committee would not have been awarded to the respondent no.3, total marks of the respondent no.3 would have become 17 out of 30 which would lead to the petitioner becoming L1. It is submitted that if 5 marks given by the Corporation to the respondent no.3 under technical evaluated parameter would have been made "0" out of 10, that also would have lead the petitioner L1 and consequently the final marks of the petitioner would have been been 87.99 as against marks of the respondent no.3 i.e. 83.90. In that event, the petitioner would have been granted 1st ranking whereas the respondent no.3 granting 2nd ranking.

59) Learned senior counsel made an attempt to distinguish the judgment cited by Mr.Bukhari, learned senior counsel for the Corporation and the judgment cited by Mr.Dhond, learned senior counsel for the respondent No.3.

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                  REASONS AND CONCLUSIONS :-

60)          We shall first decide the scope of powers of Court under

Article 226 of the Constitution of India to interfere with in a Tender matter and accordingly decide whether the petitioner has made out a case for interference in the process of tender issued by the respondent no.1 declaring the respondent no.3 as lowest bidder and the petitioner as L2.

61) Supreme Court in case of Agmatel India Private Limited Vs. Resoursys Telecom & Ors. (supra) has held that where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or comparison by the Court would be impermissible. The author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. The technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the Constitutional Court, that, by itself, would not be a reason for interfering with the interpretation given. Supreme Court has held that every decision of the administrative authority which may not appear plausible to the Court cannot, for that reason alone, be called arbitrary or whimsical.

62) In the said judgment in case of Agmatel India Private Limited Vs. Resoursys Telecom & Ors. (supra), Supreme Court adverted ppn 27 wpl-23311.22.doc

to the judgment of Jagdish Mandal Vs. State of Orissa and Ors. (supra) in which it is held by the Supreme Court that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, Courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.

63) It is held that the power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade Courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold.

64) It is held that a Court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and ppn 28 wpl-23311.22.doc

irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; (ii) Whether public interest is affected.

65) Supreme Court in case of Uflex Limited Vs. Government of Tamil Nadu & Ors.(supra) has held that element of transparency is always required in such tenders because of the nature of economic activity carried on by the State. However, the contours under which they are to be examined are restricted. The objective is not to make the Court an appellate authority for scrutinizing as to whom the tender should be awarded. Economics must be permitted to play its role for which the tendering authority knows best as to what is suited in terms of technology and price for them. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. The Government must have freedom of contract. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.

66) Supreme Court in case of M/s.N.G. Projects Limited Vs. M/s.Vinod Kumar Jain & Ors. decided on 21st March 2022 in Civil Appeal No.1846 of 2022 while dealing with the Tender matter had held that the satisfaction whether or not a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of the expectations from the tenderers while evaluating the consequences of non-performance. It is held that the Writ Court should refrain itself from imposing its decision over the decision of the employer as to ppn 29 wpl-23311.22.doc

whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of necessary expertise to adjudicate upon such issues.

67) It is held that the approach of the Court should not be to find faults with a magnifying glass in its hands but to examine as to whether the decision-making process is in compliance with the procedure contemplated by the tender conditions. Even if the Court finds that there is arbitrariness or that the tender has been granted in a malafide manner, the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

68) In this backdrop, we shall now proceed with the facts of this case and find out whether or not the case is made out by the petitioner to interfere with the tender process and the decision of the respondent no.1 to award the contract to the respondent no.3. It is not in dispute that the petitioner as well as the respondent no.3 along with other bidders had participated in the tender process. The petitioner had submitted packets within the time originally stipulated.

 ppn                               30                wpl-23311.22.doc


69)         On the other hand, it is the case of the respondent no.3 that

though the respondent no.3 was able to upload packet 'A' documents on 17th May 2022, it could not upload packet 'B' on the same day because of the technical malfunctions on the portal. Again on 18 th May 2022, the respondent no.3 tried to upload packet 'B' on the portal however, the portal showed an error with remark "No User Certificate Available." The respondent no.3 had thereafter contacted the Help Centre of the Municipal Corporation and had sent emails pointing out the errors/ malfunction to the Corporation and sought extension of time. Municipal Corporation however, did not give any response to the said request.

70) The respondent no.3 filed a Writ Petition in this Court bearing (L) No.16352 of 2022 for various reliefs. The said petition was opposed by the Municipal Corporation before vacation bench. On 27 th May 2022, this Court after considering the arguments of both the parties and considering the Corrigendums issued by the Municipal Corporation from time to time, noticed that technical bids i.e. packets 'A' and 'B' were opened on 19th May 2022 but the name of the respondent no.3 did not feature in the list of bidders. After correspondences were exchanged between the respondent no.1 and the respondent no.3 herein (petitioner in Writ Petition (L) No.16352 of 2022), this Court permitted the respondent no.3 to upload/submit packets 'A', 'B' and 'C' to the respondent no.1 Corporation on 30th May 2022 by 4.00 p.m. and directed the Corporation to accept those packets from the respondent no.3. This Court also directed the Corporation to consider the bid submitted by the respondent no.3 along with other bidders and open the financial bids of all the bidders on 1st June 2022 by 4.00 p.m. and declare the successful bidder in accordance with the Tender.

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71)          A perusal of the said order passed by this Court indicates

that Municipal Corporation had opposed the petition filed by the respondent no.3 herein and had contended that bid of the respondent no.3 herein was not submitted at all and thus the writ petition could not be entertained. This Court observed that although the respondent no.3 herein had uploaded packet 'A' on the portal of the Corporation, the same was also disputed by the respondent no.1 Corporation. This Court held that the Corporation found that an attempt had been made, it ought to have intimated the bidder to comply, which it has admittedly failed to do.

72) The Corporation contended that the respondent no.3 did make genuine attempts to upload the packets and to resolve the technical issues within time. However, neither the Corporation nor its Grievance Committee has acknowledged nor responded to the grievance of the respondent no.3 with respect to the technical glitches faced by it. The Corporation not only failed to intimate the respondent no.3 nor declare it as "Non-Responsive." There was an unresolved technical glitch and just because of a technical glitch which cannot be attributed to the respondent no.3, the respondent no.3 cannot be shut out from the bidding process. The respondent no.3 had already submitted an earnest amount of Rs.1.82 crores.

73) This Court also observed that this was not a case where the Corporation had established that the glitch was from the end of the respondent no.3 or that it was due to the system problem, internet problems, user I.D. or locking etc. This Court accordingly held that it would be in the interest of justice to allow the respondent no.3 to participate in Tender Process as no prejudice would be caused to any of ppn 32 wpl-23311.22.doc

the other bidders and would only increase competition for better achievement of the Project objective of universal education.

74) The Municipal Corporation admitted that the said order dated 27th May 2022 was not dictated in open Court on 27 th May 2022 but was uploaded only on 31st May 2022. On 1st June 2022, the respondent no.3 filed a praecipe for speaking to the minutes of the order dated 27th May 2022 passed by this Court. This Court accordingly passed an order dated 1st June 2022 and by consent of parties, the date mentioned as "30th May 2022" was corrected as "3 rd June 2022" and the date "1st June 2022" was corrected as "7th July 2022." This Court made it clear that the order dated 27th May 2022 shall be read along with the order dated 1st June 2022.

75) A perusal of the letter dated 1 st June 2022 addressed by the petitioner to the Municipal Corporation clearly indicates that there is a reference made to the petition filed by the respondent no.3 before this Court and the order passed by this Court permitting the respondent no.3 to upload/submit packets 'A', 'B' and 'C' to the respondent no.1 Corporation on 30th May 2022 by 4.00 p.m. with direction to the Corporation to accept those packets. It was the grievance of the petitioner in the said letter that the respondent no.3 had not even complied with the directions issued by this Court in its order dated 23 rd May 2022 and 27th May 2022.

76) In paragraph 4 of the said letter, it was specifically contended that the date and time for opening of financial bids and declaration of successful bidder was fixed by this Court as 1 st June 2022 ppn 33 wpl-23311.22.doc

at 4.00 p.m. It was contended that the directions given by this Court were not open for interpretation or alteration by the Corporation and accordingly, the Corporation cannot, by itself, alter the said schedule date and time as the same would be in violation of the order of the Court. The Corporation will have to abide by the said order dated 27 th May 2022 in its letter, spirit and intent unless and until the same is modified by this Court itself. In the said letter, the petitioner showed readiness and willingness to provide the technical presentation and demo at short notice since it was originally scheduled for 24 th May 2022 as per the last Corrigendum-IX.

77) A perusal of the averments made in the petition also indicates that the petitioner was fully aware of the order passed by this Court. The petitioner, on the contrary, relied upon the said order passed by this Court as final and warned the Municipal Corporation not to take steps contrary to the said order. The petitioner did not make any application for modification of the said order dated 27 th May 2022 on the ground that the Municipal Corporation had not informed this Court that the technical bids of the petitioner and other two bids were already opened on 19th May 2022 or any other grounds. The petitioner also did not challenge the said order before the Supreme Court.

78) It is not in dispute that after passing of the said order dated 27th May 2022 and 1st June 2022 thereby correcting the date of uploading the bid by the respondent no.3 and the date mentioned as "1 st June 2022" as "7th July 2022," the petitioner participated in the tender process without raising any objection. The Municipal Corporation issued further Corrigendum after passing of the said order so as to give effect ppn 34 wpl-23311.22.doc

to the said order. The said Presentation-cum-Demonstration and the Proof of Concept was rescheduled on 6th July 2022. In this respect, e- mails were sent by the Corporation to all the bidders on 4th July 2022.

79) On 1st June 2022, a Special Corrigendum was issued mentioning the Court order dated 1st June 2022 passed in the said writ petition and permitting the respondent no.3 to submit packets 'A', 'B' and 'C' between 2nd June 2022 and 3rd June 2022 by 4.00 p.m. It was to the knowledge of the petitioner that in pursuance of the said Special Corrigendum in compliance with the order passed by this Court to the knowledge of the petitioner, the respondent no.3 uploaded the packets 'A', 'B' and 'C' on 2nd June 2022 and checked by Corporation on 3rd June 2022.

80) The petitioner also submitted various shortfall documents of packets 'A', 'B' and 'C' subsequently on 10th June 2022, 13th June 2022 and 16th June 2022 respectively. The petitioner never raised any objection about the Special Corrigendum issued on 1 st June 2022 so as to implement the order passed by this Court as suggested by the petitioner itself. The petitioner had submitted some documents and clarifications/ justifications from the respondent nos.3 to 5 even on 1 st July 2022 and had subsequently participated the said Presentation-cum-Demonstration and the Proof of Concept in the month of July 2022.

81) The commercial bids were admittedly opened on 11 th July 2022. On 8th July 2022, mail was sent to the petitioner as well as the respondent nos.3 to 5 for opening of packet 'C' on 11 th July 2022. On 11th July 2022, marks were declared by the Corporation in presence of ppn 35 wpl-23311.22.doc

all the bidders and the respondent no.3 was declared L1 and the petitioner was declared L2. There was difference of Rs.6,68,00,000/- in the financial bid of the petitioner and the respondent no.3. It is not in dispute that the financial bid of the respondent no.3 was much lower than the financial bid of the petitioner.

82) It is thus clear beyond reasonable doubt that though in the technical bid, the petitioner had scored more marks than the respondent no.3, in the financial bid, the petitioner had scored less marks than the respondent no.3. The total marks scored by the respondent no.3 were more than the marks obtained by the petitioner and accordingly, the respondent no.3 was declared as successful bidder with 1 st rank. The petitioner having participated in the entire tender process without any objection and more particularly after the date of the order passed by this Court permitting the respondent no.3 to upload the tender documents beyond the original scheduled date and having submitted various documents according to the rescheduled date convened to all the bidders by the Municipal Corporation by issuing Corrigendum, is estopped from challenging the tender process including the selection of the respondent no.3 as successful bidder by alleging defects in the selection process.

84) Be that as it may, the petitioner has not disputed that under Clause 4.7 of the Tender Document, the Municipal Corporation has right to carry out amendment in the bid document before the deadline for submission of bids, for any reason, whether at its own initiative or in response to a clarification requested by a prospective bidder and modify the bid document by issuing Corrigendum. The said clause clearly provides that the bidders were advised to visit the Municipal ppn 36 wpl-23311.22.doc

Corporation website on regular basis for checking necessary updates. The Corporation also reserved the rights to amend the dates mentioned in the bid for bid process. It will be assumed that the amendments had been taken taken into account by the bidder in its bid. The Corporation may also, at its discretion, extend the last date for the receipt of bids in order to afford prospective bidders reasonable time in which to take amendment into account in preparing their bids.

84) 7th Corrrigendum out of 9 Corrigendums issued by the Corporation had been issued to reschedule the dates of submission of financial bid. The other 2 Corrigendums were required to be issued in view of the order passed by this Court revising the schedule for opening of financial bid and granting permission to the respondent no.3 to upload their bids by 1st June 2022. We do not find any substance in the submission made by the petitioner that the Corrigendums were issued from time to time with a view to favour the respondent no.3. All the bidders were benefited of such reschedule of date of such financial bids including the petitioner.

85) Be that as it may, the Corrigendum issued by the Municipal Corporation were issued by exercising their rights under Clause 4.7 of the Tender Document. No fault thus can be found on the part of the Municipal Corporation for issuing such Corrigendums. Since the petitioner did not challenge the orders passed by this Court on 27 th May 2022 and 1st June 2022 and also acted upon such orders, the petitioner cannot be allowed to challenge the steps taken by the respondent no.1 subsequent to the said order passed by this Court.

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86)          In so far as the submission of Mr.Dada, learned senior

counsel for the petitioner that the respondent no.3 could not have been given either 3 marks or 5 marks at different stages and ought to have been given "0" marks on various grounds is concerned, we have perused the documents produced by the respondent no.3 and also by the Municipal Corporation to demonstrate the procedure followed for awarding the marks and the documents considered. The petitioner was admittedly awarded more marks than the respondent no.3 in so far as the technical bids are concerned.

87) A perusal of the averments made by the petitioner itself in grounds (j) and (k) clearly indicates that even according to the petitioner, the respondent no.3 would have been entitled to be awarded only 5 marks in so far as experience with active operation of VSAT based audio-video interactive platform at live locations/sites/ classrooms is concerned. The petitioner does not dispute that the respondent no.3 was not granted more than 5 marks as per entitlement of the respondent no.3 even according to the petitioner. We cannot thus allow the petitioner to now canvass across the bar that the respondent no.3 ought not to have been given 3 marks or 5 marks for the grounds canvassed before this Court across the bar.

88) In our view, the powers of Writ Court under Article 226 of the Constitution of India is not to carry out process of re-valuation of the marks granted by experts i.e. Bid Evaluation Committee after considering various technical aspects and the documents tendered by both the bidders. The Writ Court is not an appellate authority so as to interfere with the tender process involving various technical issues, and does not have ppn 38 wpl-23311.22.doc

expertise for accessing technical documents tendered by the parties and awarding marks accordingly. In our view, there is no substance in the submission made by the learned senior counsel for the petitioner that the technical bid of the petitioner having been opened on 19 th May 2022, the respondent no.1 would have shared the information of the petitioner's technical bid to the respondent no.3.

89) We are inclined to accept the submission made by the learned senior counsel for the Municipal Corporation that all the bids were opened together and were given marks accordingly. None of the staff of the Municipal Corporation had access to the bids submitted by the parties except by following a particular procedure at the relevant time. Be that as it may, the petitioner had scored 10 marks arising out of technical bids against 5 marks scored by the respondent no.3.

90) The petitioner could not demonstrate any mala fides or arbitrariness on the part of the respondent no.1 in awarding more marks to the respondent no.3 in so far as the financial bid is concerned. The financial bids of all the bidders were opened in presence of each other. It is not the case of the petitioner that the Municipal Corporation had permitted the respondent no.3 to revise its bid after having knowledge of the financial bid submitted by the petitioner. The Municipal Corporation had taken gross total of marks secured by both the bidders i.e. sum total of marks obtained in the technical bids as well as the financial bids.

91) In our view, the Municipal Corporation has followed the entire process in a transparent manner and has not favoured the respondent no.3 as sought to be canvassed by the petitioner. The ppn 39 wpl-23311.22.doc

petitioner seeks this Court to interfere with the marking pattern followed by the Corporation in this writ petition by invoking extraordinary jurisdiction under Article 226 of the Constitution of India which is not permissible. If this Court interfere with the tender process and with the award of the contract to the successful bidder which process is followed in a transparent manner, there will be substantial loss to the public exchequer.

92) The petitioner has not made out any case for interference with the tender process or with the decision of the Municipal Corporation to declare the respondent no.3 as successful bidder and declaring the respondent no.3 as L1. Principle of law laid down by the Supreme Court in the above referred judgments apply to the facts of this case. We are respectfully bound by the said principles of law laid down in the said judgments. The petition is totally devoid of merit.

93)          We accordingly pass the following order :-
       (i)   Writ petition is dismissed.
       (ii) No order as to costs.




             KAMAL KHATA, J.               R.D. DHANUKA, J.