Bombay High Court
Ms Pallavi Constructions Engineers And ... vs The Chief Engineer Ministry Of Road ... on 14 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17964-DB
905.WP.7376.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7376 OF 2024
M/s. Pallavi Constructions,
Engineers & Contractors,
Plot No.84-85, Kalyan Nagar
Basmat Road, Parbhani
through its Authorized Signatory ... PETITIONER
VERSUS
1. The State of Maharashtra
through N.H. Public Work
Department, Konkan Bhavan,
Navi Mumbai.
2. The Ministry of Road Transport
& Highways through Public Works
Department (NH) Government
of Maharashtra.
The its Executive Engineers
Regional Office - Mumbai
Room 508 & 509, 5th Floor Konkan
Bhavan Sector -10, CBD Belapur,
Navi Mumbai - 400614
3. Dattatrya Contractors Pvt. Ltd.,
through its Proprietor,
House No.615, Hatta - Purna Road,
Katneshwar, Taluka Purna,
District Parbhani
Email ID : [email protected] ... RESPONDENTS
...
Advocate for Applicant : Mr. Sachin Deshmukh i/by Mr. Shaikh Majit S.
A.G.P. for respondent No.2 : Mr. S.R. Yadav-Lonikar
Advocate for Respondent No.3 : Mr. Deshmukh Vijay Vasantrao
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
Reserved on : 06.08.2024
Pronounced on : 14.08.2024
1/11
905.WP.7376.24.odt
ORDER (MANGESH S. PATIL, J.) :
By way of this writ petition under Article 226 of the
Constitution of India the petitioner is seeking a declaration that the
respondent No.3 stands inherently disqualified in the tender process
commenced by the respondent Nos.1 and 2, and a mandamus to the
respondent Nos.1 and 2 to go on with the tender process excluding the
respondent No.3.
2. The respondent Nos.1 and 2 floated a tender by publication
of notice inviting E-tender No.8 on 07.03.2024 for the work 'One Time
Improvement to Kalyan-Ahmednagar-Parbhani-Nanded-Nirmal Road NH-
61 Km.463/700 to 481/100 (Parbhani City portion) in the State of
Maharashtra on EPC mode', with an estimated cost of Rs.27.77 crore
(excluding GST) and the period for completion was stipulated at 18
months including rainy session.
3. Due to model code of conduct enforced in the wake of Lok
Sabha elections necessary corrigenda were issued with periodical
intervals.
4. In all six bidders responded by submitting their proposals
including the petitioner and respondent No.3.
5. It is alleged by the petitioner that there was flaw in technical
evaluation of the bids to the extent of Respondent No.3. Contrary to the
Request for Proposal (RFP) respondent No.3 was not registered with the
Bidder Information Management System (BIMS) and contrary to the RFP
905.WP.7376.24.odt
condition 2.2.2.7 the details of ongoing and completed projects were not
uploaded on regular basis which was so very material for assessing its
financial capacity as stipulated in 2.2.2.8. It had not disclosed all the
ongoing projects which constituted suppression of material facts. The
condition was mandatory as stipulated in clause 2.14.1.2 and being a
mandatory condition non-compliance with it should have been sufficient
to disqualify respondent No.3. However, respondent Nos.1 and 2 ignored
such mandatory stipulation from the RFP and the financial bids were
opened on 26.06.2024 and respondent No.3 was found to be L-1 bidder.
Hence this petition.
6. Learned advocate Mr. Deshmukh for the petitioner would
take us through the relevant clauses of the RFP and would try to
demonstrate as how registration on the BIMS portal was an essential
stipulation, whereby, the bidders were supposed to upload all the
information regarding ongoing and completed projects based on which
the employer was supposed to objectively scrutinize the offer of every
bidder and particularly the bid capacity that was to be assessed in
accordance with the formula prescribed. Non-disclosure of such projects
undertaken by respondent No.3 should have been treated as his proposal
being non-compliant and by virtue of clause 2.6 respondent No.3 should
have been disqualified. He would also refer to the bid capacity furnished
by respondent No.3 certified by a firm of chartered accountants and
would advert our attention to the evaluation chart (Exhibit-D) to buttress
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his submission as to how respondent Nos.1 and 2 have completely
ignored clause No.2.2.2 and 2.14.1.2 of the RFP.
7. Mr. Deshmukh in this context would also submit that this
certificate of the Chartered Accountant discloses works in hand to the
tune of more than 69 crore 66 lakh. By the work order dated 19.12.2023
of PW Division, Parbhani respondent No.3 was having additional work of
14.80 crore. He was having another work order dated 08.08.2023 of
PWD Hingoli worth 2.89 crore. Thus, the aggregate of the works in hand
with the respondent No.3 for the financial year 2023-24, was about
Rs.87.36 crore but the certificate of the CA (Exhibit-D) merely disclosed
three works in hand for that financial year. He would, therefore, submit
that by virtue of clause 4.1 suppression of such material fact could not
have been ignored and respondent Nos.1 and 2 should have disqualified
respondent No.3.
8. Mr. Deshmukh would refer to the decision in the matter of
Meerut Development Authority Vs. Association of Management Studies
and Anr.; (2009) 6 Supreme Court Cases 171 and B.S.N. Joshi Vs. Nair
Coal Service Ltd.; (2006) 11 SCC 548. Based on these Mr. Deshmukh
would substantiate his argument as to how the aforementioned clauses of
the RFP are essential conditions and should not have been ignored. He
would submit that it is a matter of public money and performance of a
public work. Any such deviation by respondent No.3 should not have
been tolerated and seeks to allow the writ petition.
905.WP.7376.24.odt
9. Mr. Deshmukh would lastly cite following decisions:
a. B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. and Ors.;
(2006) 11 Supreme Court Cases 548
b. Siemens Public Communication Networks (P) Ltd. Vs. Union of
India and Ors.; (2008) 16 Supreme Court Cases 215
c. Shobikaa Impex Private Ltd. Vs. Central Medical Services Society
and Ors.; (2016) 16 Supreme Court Cases 233
d. N.G. Projects Ltd. Vs. Vinod Kumar Jain and Ors.; (2022) 6
Supreme Court 127
e. Jai Bholenath Construction Vs. The Chief Executive Officer, Zilla
Parishad, Nanded and Ors.; (Civil Appleal No.4140/2022) 2022
LiveLaw (SC) 302
10. Per contra, learned AGP would submit that no error has been
committed while evaluating the technical bids and even the financial
bids. He would submit that as per the RFP the technical bid was to be
submitted on E-Procurement portal and also on BIMS portal, however,
the evaluation was to be done manually and not online. Accordingly, all
the six bidders were found to be responsive and the technical bids were
opened followed by opening of the financial bids, wherein, respondent
No.3 was found to be L-1 bidder. He would submit that out of six bidders,
four bidders had submitted their bids even on BIMS portal including
respondent No.3. However, other two bidders M/s Priya Construction and
Mayra Trade and Services Pvt. Ltd. had not uploaded their documents on
the BIMS portal still even their bids were opened in order to have more
participants which in turn would have enabled the Government to save
public money.
11. He would, therefore, submit that though the stipulation in
the RFP requiring submission of the bids and documents on BIMS portal
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was mandatory it was relaxed for all the bidders and not to any particular
bidder. All the bids were accepted on the technical evaluation manually
and consequently the evaluation sheet was not referring to any specific
clause of RFP, provided for in Annexure-3 of the RFP which were having
specific reference to the clauses 2.2.2.3, 2.2.2.9(1), 2.2.2.8(iii). He
would precisely point out that it was fallacious for the petitioner to have
pleaded that respondent No.3 had not submitted the documents on BIMS
portal. There is no substance in the petition.
12. Learned AGP would submit that respondent No.2 being the
employer, as has been held in the matter of Jagdish Mandal Vs. State of
Orissa and Ors.; (2007) 14 SCC 517, interpretation of the clauses,
decision to relax a particular clause or otherwise being exclusively within
his domain, in the absence of any allegations about mala fides
attributable to respondent Nos.1 and 2, this Court will have inherent
limitations in conceding to the request of the petitioner in exercise of the
powers under Article 226. He would also cite decision in the matter of
N.G. Projects Ltd. (supra) and Tata Motors Ltd. Vs. Brihan Mumbai
Electric Supply and Transport Undertaking (BEST); 2023 SCC OnLine SC
671.
13. Lastly, the learned AGP would submit that after opening of
the financial bids the petitioner was found to be L-4 bidder. Since no
allegations have been made in respect of the bidders who were L-2 and L-
3, the petitioner being L-4 having no objection regarding technical and
905.WP.7376.24.odt
financial capacity of the L-2 and L-3 bidders who are not parties to the
petition, mere disqualification of respondent No.3 would not suffice and
the petitioner cannot be heard as irrespective of the technical and
financial capacity of respondent No.3, it cannot be awarded the contract.
To substantiate his submission he would advert our attention to a division
bench decision of this Court to which one of us (Mangesh S. Patil, J.) was
a member in Writ Petition No.4755/2024 Datta and Datta Associates Vs.
The State of Maharashtra and Ors.; (Aurangabad Bench) decided on
10.07.2024.
14. The learned advocate for respondent No.3 would submit that
the petitioner's stand that respondent No.3 was not registered in BIMS
portal is an utter lie. It has uploaded all the documents in the BIMS
portal as well. The technical bids were opened on 27.05.2024. The
petitioner did not raise any objection promptly and took chance by
allowing the financial bids to be opened on 26.06.2024 and after it was
revealed that it was L-4 bidder, he has filed the petition. The powers
under Article 226 of the Constitution need not be exercised to favour
such a bidder and the petition be dismissed on this count alone. As far as
bid capacity of respondent No.3 is concerned he would submit that the
petitioner has the minimum prescribed bid capacity of 27.77 corer which
has been duly evaluated.
15. Lastly, the learned advocate would submit that the petitioner
tried to exert political pressure. It could make a Member of Parliament
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canvas its case as is evident from the documents annexed with the
petition and this Court should not exercise the discretion in favour of
such an unscrupulous litigant.
16. We have considered the rival submissions and perused the
papers. At the out set, it is necessary to note that the initial objection
raised in the petition about failure of respondent No.3 to register on
BIMS portal and uploading the documents in that is factually incorrect
and even the learned advocate Mr. Deshmukh for the petitioner fairly
conceded this aspect. Consequently, registration on BIMS portal and
uploading of the documents thereon with reference to the specific
stipulations from the RFP need not be gone into.
17. Besides, as has been pointed out by the learned AGP and the
learned advocate for the respondent No.3, the condition regarding BIMS
portal from the RFP was expressly relaxed by respondent No.2 as two
other bidders had not complied with those stipulations to which the
petitioner had not raised any objection and consequently one need not
examine this aspect of the matter.
18. As far as bid capacity of respondent No.3 is concerned, it will
not stand to any scrutiny inasmuch as respondent Nos.1 and 2 in their
affidavits-in-reply have substantiated the fact that respondent No.3 was
having requisite bid capacity of Rs.27.77 crore. Though it is now being
alleged in tune with the rejoinder about respondent No.3 having not
disclosed three works undertaken by the work orders dated 08.08.2023,
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19.12.2023 and 28.02.2024, any inquiry into the bid capacity of
respondent No.3 would be academic and inconsequential for the simple
reason that petitioner, admittedly, has been found to be L-4 bidder. The
bidders who are L-2 and L-3 are not coming forward to raise any
objection as regards the bid capacity of respondent No.3. Even if
respondent No.3 is held to be having no bid capacity, it is the L-2 or L-3,
who would succeed and not the petitioner who is L-4. Those other
bidders who are above the petitioner on merit are not the parties to this
petition. Merely holding respondent No.3 disqualified and allowing the
tender process to go on being the only prayers in the petition, those
prayers would not be available to the petitioner. This was a peculiar
circumstance which was dealt with by this Court in the matter of Datta
and Datta Associates (supra). Even in that matter the petitioner therein
was L-3 and was questioning qualification of Respondent No.11 who was
L-1 (successful bidder) without adding L-2 bidder and this Court had
refused to quash the tender process at the instance of L-3 bidder.
19. Apart there from, conspicuously, the petitioner is not
attributing any mala fides on the part of respondent Nos.1 and 2 while
undertaking the tender process rather he seems to have engaged in
unscrupulous methods and is a fence sitter. It took chance and allowed
the technical bids to be opened on 27.05.2024. It even allowed the
financial bids to be opened without any demur on 26.6.2024 and after it
was found to be L-4, has filed the petition on 11.07.2024. It is evident
905.WP.7376.24.odt
that had he been able to succeed or was found to be L-1, in all probability
it would not have raised any objection for opening of the financial bids. It
is clearly an after thought in approaching the Court and now questioning
the qualification of respondent No.3. No such scrutiny as is expected by
the petitioner in these peculiar circumstances can be undertaken.
20. Besides, it is quite evident that even the petitioner could
influence a Member of Parliament to raise the issue, whereby, the later
address a letter to the Chief Engineer of the National Highway Region,
New Mumbai on 05.07.2024 expressly informing that according to his
information and knowledge and expressly referring to the works in hand
of respondent No.3 and also apparently, in consonance with the stand of
the petitioner, pointing out the bid capacity of respondent No.3 in the
light of different works it has undertaken and also expressly alleging that
respondent No.3 was non-compliant, its proposal was false and bogus
and even expecting forfeiture of the EMD and directing it to be black
listed. The very fact that a copy of such correspondence between the
Member of the Parliament and the respondent No.2's office is a part of
the petition clearly demonstrates the petitioner's over enthusiasm while
participating in a tender process of a public work. We need not delve any
more. As has been held in the matters of N.G. Projects Ltd. and Tata
Motors Ltd. (supra) and several other judgments, there is inherent
limitation in undertaking judicial review in the matter of contracts. Even
some irregularities have to be ignored unless there are strong and
905.WP.7376.24.odt
substantial reasons attributing mala fides and resulting in loss to the
public exchequer. Nothing of the sort is pleaded in the petition. There is
no merit and the petition is liable to be dismissed.
21. The Writ Petition is dismissed.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
22. After pronouncement of the order, learned Advocate for the
petitioner seeks stay to the operation of the order and continuation of the
ad-interim relief for a reasonable time so as to enable it to approach the
Supreme Court.
23. Learned AGP and learned Advocate for respondent No.3
submit that the impugned tender is about a road, condition of which is
pathetic and ad-interim relief may not be extended.
24. Considering the fact that the ad-interim relief has been in
operation till date, it is extended for a period of two weeks.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
habeeb
