M/S B R Ande Construction Company ... vs State Of Maharashtra Through Its ...
2023 Latest Caselaw 1678 Bom

                                     1                   WP-369-2023-J...

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                          WRIT PETITION NO. 369 OF 2023


M/s B.R. Ande Construction Company,
Through its Partner,
Balaji Ramchandra Ande,
Age: 52 years; Occ.: Business;
R/o: 202, Ratna Residency, Near ZP School,
Laxmi Nagar, Latur, Dist. Latur.                           ...Petitioner

                 Versus

1.            State of Maharashtra,
              Through its Secretary,
              Public Works Department,
              Mantralaya, Mumbai - 32;
2.            Executive Engineer,
              Public Works Division No.2,
              Latur.                                       ...Respondents


Miss Pradnya Talekar, Advocate i/by Talekar & Associates for Petitioner
Mr S.B. Yawalkar, AGP for Respondents/State


                                CORAM        :   MANGESH S. PATIL AND
                                                 S.G. CHAPALGAONKAR, JJ.

RESERVED ON : 06-02-2023 PRONOUNCED ON : 20-02-2023

JUDGMENT : ( PER S.G. CHAPALGAONKAR, J. )

1. The petitioner, partnership firm approaches this Court under

Article 226 of the Constitution of India with following prayers :-

A. To quash and set aside the tender summary report showing the petitioners bid as being "not admitted:fee/ PreQual/Technical" updated on 06.01.2023, by issuing a writ of certiorari or any other direction, writ or order as the case may be;

B. To direct the respondent No.2 to open the financial bid of the petitioner along with other successful

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bidders, for e-tender B-2 notice no.LTR-2/11/2022-23 for Construction of Railway over bridge Ahmedpur Shirur (Tajband) Udgir Road, on SH 249, Km. 1/200 near Malkapur on Udgir By-pass road, Tq. Udgir, Dist. Latur, by issuing a writ of mandamus or any other direction, writ or order as the case may be;

2. The petitioner avers that the tender notice dated 20-10-2022

was issued by respondents for construction of railway over bridge,

Ahmedpur-Shirur (Tajband) - Udgir Road, on SH 249, Dist. Latur with an

estimated cost of Rs. 28.00 crores and 24 months period of execution of

work .

3. The tender notice prescribes qualifying criteria in clause (4).

The clause 4.2 provides for the information and documents to be included

with the bids in section (2). The sub clause (b) and (c) states as under :-

(b) Total monetary value of construction work performed for each of the last Seven years;

(c) Experience in works of a similar nature and size for each of the last Seven years and details of works underway or contractually committed and clients who may be contacted for further information on those contracts;

4. The clause No. 4.4 reads as under :-

4.4 A. To qualify for award of the contract, each bidder in its name should have in the last Seven years as referred to in Appendix.

(a) Achieved a minimum annual financial turnover during any last seven years (in all classes of civil engineering, construction works only) of value not less than Rs.1078.88 lakhs in any one year. In support of this, scanned copy of annual Audit report certified by Chartered Accountant should be produced.

(b) Satisfactorily completed any civil work (from start to finish) during last seven years. It should have been commissioned and completed during last seven years i.e. 2015-2016, 2016-2017, 2017-2018, 2018-2019,

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2019-2020, 2020-2021, 2021-2022 of atleast:-

i. Three similar works each having minimum estimated cost of Rs.1150.80 Lakhs at price level 2022-23.

                                                           or
                            ii.        Two similar works each having minimum

estimated cost of Rs. 1438.51 Lakhs at price level 2022-

iii. One similar work of value not less than Rs.2301.61 Lakhs at price level 2022-23.

(Financial turnover and cost of completed works of previous years shall be given weightage of 10% per year based on Rupee Value to bring them to 2022-23 price level.)

4. The petitioner in compliance with the aforesaid condition

submitted the work completed / in hand certificate as under :-

Name and Place and Agreement Tendered Total cost of Date of Sr.No. Name of Work Address of the Country No. Cost Work Done Completion Organisation

Construction of Railway Over Bridge Across Executive Akola, Railway Engineer, B-1/326/DL/ 14788561 1 Maharashtra, 19,93,00,007.85 2021-22 Crossing on P.W.D. 2016-17 8 India Akola Dabki Division Akola Gaigaon Road Dist. Akola Construction of Railway Over bridge Approaches, Service Road, Executive Diversion Road Engineer, Latur, ABTS/1780 2 on Shirur Udgir P.W.D. Maharashtra, 85642647 29,37,95,761.92 2016-17 Dt. 20.05.2014 Bidar Road SH- Division No.2, India 217 at Km. Latur 34/700 (Railway Km No.169/6-7 L.C.No.82) Tq.

Udgir Dist. Latur

5. The respondent No.2 published the tender summary report

dated 07-01-2023 showing, qualified and disqualified bids. The name of

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petitioner appears at Sr. No. 3. The remark states "not complied with

technical specification". The bidders namely KH Construction, M/s. A.G.

Construction, M/s Nikhil Construction and M/s Nirmiti Construction are

declared as qualified and their technical bids are accepted. The petitioner

submitted representation dated 06-01-2023 justifying his

qualification/eligibility in terms of the tender clauses. Referring to the

government circular dated 07-03-2019 and 17-09-2019, it is submitted that

the petitioner ought to have been declared qualified and its technical bid

ought to have been accepted.

6. The respondent No. 2 filed affidavit-in-reply. It is contended that

the tender condition No.4.4 (a) (b) required that bidder must have

completed civil work (from start to finish) during last seven years i.e. from

financial year 2015-2016 till financial year 2021-2022. It further prescribed

that three similar works each with minimum estimated costs of Rs.1115.80

lakhs at price level 2022-2023 or Two similar works each having minimum

estimated costs of Rs. 1438.51 lakhs at price level 2022-2023 or one

similar work of value not less than Rs.2301.61 lakhs at price level 2022-

2023 must have been completed. However, the petitioner did not comply

with the aforesaid requirements. The petitioner submitted details of two

works in support of his claim to satisfy the experience criteria. The first

work relied upon by the petitioner was initiated as per the work order dated

20-05-2014 i.e. prior to 7 years. The second work of railway over bridge at

Akola is having valuation of 1331.19 lakhs only. Even after applying the

weightage of 10% figure as per the note, the valuation of said work does

not exceed 1993.00 lakhs. Therefore, the petitioner did not meet the

5 WP-369-2023-J...

requirement of clause No.4.4 of tender notice. Hence, he has been

declared as disqualified.

7. The petitioner filed rejoinder affidavit dated 05-02-2023 stating

that liberal approach has been adopted while considering the eligibility of

other bidders. Similar treatment is not given to the petitioner. The

construction work of railway overbridge at Udgir, Dist. Latur was executed

during the period 2016-2017 though work order was issued in the year

2014. According to the petitioner, the said work ought to have been

considered eligible for experience of the petitioner.

8. Miss Pradnya Talekar, learned advocate appearing for the

petitioner vehemently submitted that the petitioner had produced sufficient

material showing compliance of qualifying criteria prescribed under clause

No.4.4 of the tender notice. She would submit that the petitioner had

successfully completed the work of construction of railway over bridge on

Akola Dabki Gaigaon road, the estimated costs of which was Rs.1478.00

lakhs. Agreement was executed in the year 2016 and the work has been

completed in the year 2021-2022. As such, said work alone was sufficient

to meet eligibility of the petitioner. She would further submit that the

second work of construction of railway over bridge on Shirur Udgir Bidar

Road was executed by the petitioner during the period from 2016 to 2017

which was worth Rs. 8564.00 lakhs. She would submit that any individual

work completed by the petitioner is sufficient to meet the requirements of

experience criteria. She would submit that the over bridge work at Udgir

Dist. Latur under work order issued in the year 2014 was executed in

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2015-2016, hence could have been considered while ascertaining

petitioner's work experience. The work at Akola would comply requisite

criteria after applying the weightage of 10%. According to her, the total

cost of the work at 2022-23 price level would come to Rs. 2937.00 lakhs

which meets the requirement of Rs. 2301.00 lakhs as per the condition (iii)

of clause No.4.4.

9. Miss Pradnya Talekar would further submit that other bidders

do not comply with the similar work condition, as they have experience of

road construction, which is different than construction of overbridge. The

work under the subject tender is regarding execution of railway overbridge.

The petitioner has the experience of similar work i.e. construction of

railway over bridge. Hence, it was more suitable and eligible for award of

contract. She would further point out that the respondent authorities have

not adhered to the guidelines under government resolution dated 17-09-

2019 as well as the government circular governing the subject matter. She

would urge that the respondents be directed to consider the financial bid of

the petitioner along with other bids. She would attribute the action of the

respondents as discriminatory and arbitrary.

10. Mr S.B. Yawalkar, learned AGP for the respondents would

submit that the petitioner has been rightly declared as disqualified. The

petitioner relied upon the two works in support of its claim regarding

experience for the last seven years. The Udgir overbridge work relied

upon by the petitioner was granted to it under the work order issued in the

year 2014 i.e. more than 7 years ago which did not meet requisite

criterion. The Akola Dabki overbridge work relied upon by the petitioner is

7 WP-369-2023-J...

for lesser value than required, hence does not meet with the similar single

work criteria. He would submit that the representation of the petitioner was

duly considered. It was satisfied about its disqualification. He would urge

that since the petitioner does not comply with the requisite qualification

under tender notice, it has no right to claim any relief.

11. We have considered the arguments advanced on behalf of both

the sides. We have perused the documents relied upon by the petitioner

as well as the respondents.

12. The petitioner will have to demonstrate that it complied with the

requisite qualifying criteria under tender notice. The petitioner claims that it

is compliant with the tender condition regarding execution of similar work,

with minimum annual financial turn over during last seven years. We have

perused the experience certificate/statement that has been submitted by

the petitioner along with his tender. The construction work of railway over

bridge at Udgir Dist. Latur was awarded to it in the year 2014. Admittedly,

the work order was issued to the petitioner more than seven years prior to

present tender notice. The respondent authorities declined to consider that

work. The petitioner avers that commencement of the work was delayed

which actually commenced in the year 2016-2017 therefore, the work

could have been considered as eligible to meet requisite qualifying criteria.

We are afraid contention cannot be accepted. The date of the work order

would be relevant for considering the eligibility criterion as per the tender

notice. The clause No. 4.4 (b) clearly stipulates that the satisfactorily

completed work from start to finish should be during last seven years

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which alone is to be taken into consideration. It further specifies that the

work should have been commissioned and completed during the last

seven years i.e. 2015-2016 to 2021-2022. While interpreting the word

commissioned, we cannot ignore the date of work order. In that view of the

matter, the stand of the petitioner that the work in respect of construction

of railway over bridge at Udgir Dist. Latur ought to have been considered

for counting the experience criteria cannot be accepted.

13. The petitioner has further relied upon another work executed by

him in respect of construction of railway over bridge, Akola. However, the

valuation of the said work individually does not pass the requisite criteria.

The valuation of the construction of railway over bridge at Akola comes to

Rs.1331.19 lakhs. Even by applying weightage of 10%, the valuation of

the work comes to Rs.1993.00 lakhs, which is less than the requisite figure

of Rs.2301.61 lakhs prescribed in clause No.4.4(iii). Considering the

aforesaid factual aspects, it is apparent that the petitioner has failed to

meet qualifying criterion.

14. It is trite that the tendering authority is the best Judge of the

terms and the conditions of the tender. The interpretation adopted by the

tendering authority cannot be interfered by undertaking judicial review in

exercise of powers under Art. 226 of the Constitution of India. The

Supreme Court of India in the matter of Tata Cellular Vs. Union of India

reported in (1994) 6 SCC 651 as well as N.G. Projects Limited Vs.

Vinod Kumar Jain and others reported in (2022) 6 SCC 127 has

discussed the scope of interference in the contractual matters of the

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government contracts and tenders. It has been reiterated that the writ

court should refrain itself from imposing its decision over the decision of

the employer as to 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 the

necessary expertise to adjudicate upon such issues. The approach of the

Court should be not to find fault with magnifying glass in its hands, rather

the Court should examine as to whether the decision-making process

complies with the procedure contemplated by the tender conditions. If the

Court finds that there is total arbitrariness or that the tender has been

granted in a mala fide manner, still 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.

Applying the aforesaid guidelines in the facts of the present case, it is

difficult to accept interpretation of the tender clauses as advanced by the

petitioner.

15. The next submission advanced on behalf of the petitioner is

regarding non-fulfillment of the eligibility criteria by other bidders or latitude

given to them regarding qualifying criteria. We are not inclined to delve in

that aspect, as those bidders are not before us. Even going by the prayers

in the present petition, there is no challenge to the selection of successful

bidders in the technical evaluation. The petitioner is seeking declaration

from this Court that it complies with the requisite experience criteria. It has

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to stand on its own legs. After detailed examination of the documents, we

have arrived at finding that the petitioner in non-compliant with requisite

experience criterion and has been rightly declared as disqualified.

16. The writ petition is devoid of merits. Hence, it is dismissed.

[ S. G. CHAPALGAONKAR, J. ] [ MANGESH S. PATIL, J. ]

After pronouncement of the order, the learned advocate for the

petitioner submits that since interim relief has been in operation till date,

the same may be continued for a reasonable time for the petitioner to

approach the Hon'ble Supreme Court.

The learned AGP opposes his request on the ground that it is a

matter of construction of over-bridge.

Taking into account the nature of the dispute coupled with the

fact that the interim relief has been in operation till this date, we extend it

for two weeks.

[ S. G. CHAPALGAONKAR, J. ] [ MANGESH S. PATIL, J. ]

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