Bombay High Court
M/S. Chennai Msw Private Limited vs State Of Maharashtra Thr. The Principal ... on 10 September, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:36341-DB
aswp12224-2024-F.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12224 OF 2024
Chennai MSW Private Limited,
11B, Level 11, Galaxy by Aurobindo,
Hitech City Road, Gachibowli,
Hyderabad; Telangana 500 081 ... Petitioner
V/s.
SHABNOOR 1. The State of Maharashtra,
AYUB through the Principal Secretary,
PATHAN
Digitally signed by Maharashtra Urban Development
SHABNOOR AYUB
PATHAN
Date: 2024.09.10 Authority, Mantralaya, Madam
14:17:58 +0530
Cama Road, Hutatma Rajguru
Square, Nariman Point,
Mumbai - 400 032
2. Navi Mumbai Municipal Corporation,
Through its Commissioner,
Plot No.1 & 2, Kille Gaothan
Palm Beach Junction, Sector-15A,
Near C.B.D. Belapur,
Navi Mumbai - 400 614
3. The Additional City Engineer,
Navi Mumbai Municipal Corporation,
Plot No.1 & 2, Kille Gaothan
Palm Beach Junction, Sector-15A,
Near C.B.D. Belapur,
Navi Mumbai - 400 614
4. A.G. Enviro Infra Project Pvt. Ltd.,
having its office at A-59,
Wagle Estate Road No.10,
Thane West - 400 604 ... Respondents
1
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Mr. Girish S. Godbole, Senior Advocate with Mr.
Hitesh Soni, Ms. Vaishali H. Soni i/by M/s. Hitesh
Soni & Associates for the petitioner.
Mr. P.P. Kakade, Government Pleader with Mr. O.A.
Chandurkar, Additional G.P. and Mrs. G.R.
Raghuwanshi, AGP for respondent No.1 - State.
Mr. Tejas Dande with Mr. Bharat Gadhavi, Ms. Mansi
Dande and Mr. Pratik Sabrad i/by Tejas Dande for
respondent Nos.2 and 3.
Mr. Saket Mone with Mr. Devansh Shah i/by Vidhii
Partners for respondent No.4.
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ &
AMIT BORKAR, J.
RESERVED ON SEPTEMBER 3, 2024
PRONOUNCED ON : SEPTEMBER 10, 2024
ORAL JUDGMENT: (Per Amit Borkar, J.)
1. The present writ petition impugns the legality and
propriety of the Technical Bid Evaluation Summary dated 16th
August 2024, issued by Respondent No. 2, wherein the
petitioner has been disqualified from further participation in
the tender process for the reasons stated therein.
2. The facts and circumstances relevant for determining the
petitioner's eligibility are as follows:
. The petitioner is a subsidiary of M/s. Re Sustainability
Limited (formerly known as M/s. Ramky Enviro Engineers
Limited), a company engaged in providing services such as
waste management, recycling, integrated environmental
services, consultancy, facilities management, car park
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management, and construction and demolition waste
management. The petitioner claims to have extensive
experience in executing contracts related to waste
management and establishment of waste-to-energy projects.
3. Respondent No. 2 - Corporation issued a Notice Inviting
Tender bearing No.NMMC/ACE/01/2023-24 dated 23rd March
2024, inviting bids from eligible and interested parties for the
"Work for Collection, Transfer, and Transportation of Municipal
Solid Waste and Related Allied Works" within the jurisdiction
of Navi Mumbai Municipal Corporation for a period of 9 years.
The tender sale and submission deadline was initially set for
13th May 2024, with an earnest money deposit of Rs. 25
crore. A pre-bid meeting was scheduled for 15th April 2024.
The tender document laid down the mandatory qualifying
criteria, technical bid evaluation criteria, a quality cost-based
selection process, and general terms and conditions for
bidders.
4. The tender document was issued on 23rd March 2024,
with the last date for bid submission being 13th May 2024.
Subsequently, Respondent No. 2 issued three corrigenda on
20th May 2024, 3rd June 2024, and 7th June 2024, modifying
Clause 2.10 and other relevant clauses. The submission
deadline was initially extended to 31st May 2024 and further
to 4th July 2024.
5. On 3rd July 2024, the petitioner, as the lead member of
a consortium with its associate company, M/s. Hyderabad
Integrated MSW Ltd., submitted its bid, including all required
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information, documents, and affidavits in the prescribed
format, along with an earnest money deposit of Rs. 2.5 crore.
Besides the petitioner, three other companies, including
Respondent No. 4, participated in the tender process.
6. On 16th August 2024, Respondent No. 2 published the
technical evaluation summary on its portal. The report
indicated that the financial bids were scheduled to be opened
four minutes after the publication of the technical evaluation
summary. The summary further revealed that two bidders,
including Respondent No. 4, were deemed technically
qualified, whereas the petitioner was declared technically
disqualified, as reflected in the evaluation summary, which is
reproduced below:
"Sr. Clauses Remarks
No.
1. The Bidder shall have EPF Challan submitted for
experience in managing the month of Feb, Mar & Apr
manpower of minimum 500 2024 is only for 213
nos on their own manpower. Secondly, EPF
establishment/JV/Consortium challan for the month of
PF Deposit challan should be Sep, Oct & Nov 2020 is
submitted along with ESIC 4647, 3353 & 3274
registration details (Pg. No.16) manpower respectively.
Therefore, 500 manpower
for continuous 3 years is
not complying
2. Affidavit of Rs.100 for Non- M/s. Ramky Energy &
Eligibility for Tendering the Environment Limited which
project/work (As per Clause is an Associate/parent
2.8) - Black listed/ Debarred/ Company of M/s.Chennai
terminated/ Convicted in a MSW Pvt. Ltd. is terminated
court/Detained under any Law. owning to poor performance
by New Delhi Municipal
Council (NDMC). The same
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has been clarified by NDMC
vide email dated
29.06.2024.
3. Labor License Certificate (Pg. Not as Per Specification.
no.16, 2.12)
4. Sample Bins Submitted as per Document not submitted.
specifications (Corrigendum
pg.no.12 & 13) - Bin Sample
(Green 240) & Bin Sample
(Blue 120)
5. Either own workshop OR MOU Document not submitted.
with any other workshop in
Navi Mumbai for attending the
repair & maintenance of
Vehicles Pg. No.19
6. Undertaking to investigate or Document not submitted.
Inspect the site work by NMMC
(as per clause 6.4.3j)Pg.No.19
7. Mobile Garbage Compactors Document not submitted.
(Pg.No.19 & 20) - ISO
8. 10,000 Bins in the past 10 Document not submitted.
years (Client List)
9. RFID & GPS (Pg.No.19 & 20) - Document not submitted."
ISO
7. The petitioner has, therefore, filed the present writ
petition on 20th August 2024, challenging the decision of
Respondent No. 2 to declare him technically disqualified.
During the pendency of this petition, the petitioner amended
the memo to implead Respondent No. 4.
8. Mr. Godbole, learned Senior Advocate representing the
petitioner, argued that the petitioner's technical bid was
deemed non-responsive based on nine grounds outlined in the
report of the Technical Evaluation Committee. However, he
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contended that none of these grounds sufficiently justify the
Committee's decision to disqualify the petitioner's bid. He
further submitted that the corrigenda dated 8th June 2024
and 22nd May 2025 amended the requirement of submitting
ESIC and EPF challans, replacing them with a certificate from
the client. The petitioner provided a client certificate dated
21st September 2022 from the Greater Chennai Corporation,
confirming that 4,905 personnel were engaged for three
consecutive years. Additionally, the affidavit required under
Clause 2.8 of the NIT concerning prior blacklisting,
termination, or conviction was duly submitted. He argued that
M/s. Ramky Energy and Environment Ltd., though an
associate of the petitioner, had its contract terminated in
2014, and this issue remains sub judice before an arbitrator,
rendering it too remote to cause the petitioner's
disqualification.
9. Mr. Godbole further submitted that in the arbitration
proceedings between M/s. Ramky Energy and Environment
Ltd. and the Delhi Municipal Corporation, the termination
order was not enforced. He argued that the labour license
certificate, required under Clause 2.1 and the corrigendum
dated 22nd May 2024, was not necessary, as later clarified in
subsequent corrigenda. He also submitted that the petitioner
complied with the technical specifications regarding the bins,
as file No.4 submitted along with the bid, contained all
necessary documents establishing compliance with Point No.
21 of the corrigendum dated 22nd May 2024. Furthermore,
communications from leading OEMs such as Tata, Mahindra,
Eicher, Hyva, and Bharat Benz assured full technical support,
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uninterrupted supply of spares, materials, and services,
fulfilling the requirement to own a workshop or have an MoU
with one in Navi Mumbai for vehicle maintenance.
10. Regarding Clause 6.4.3(j), Mr. Godbole submitted that
the condition requiring an undertaking to investigate or
inspect the worksite was discretionary and not mandatory. He
also argued that under Clause 2.6(v), there was no obligation
to submit separate ISO certificates, as they were only
recommendatory. The petitioner complied with Clause 2.6(iv)
by submitting a work order from Otto Waste Systems Pvt. Ltd.
for the supply of 15,000 mobile garbage bins over three
years, and thus, no separate client list was necessary. He
relied on the judgments in Rashmi Metaliks Limited and
Another vs. Kolkata Metropolitan Development Authority and
Others, (2013) 10 SCC 95, and Poddar Steel Corporation vs.
Ganesh Engineering Works and Others, (1991) 3 SCC 273, to
support his contentions.
11. Conversely, Mr. Dande, learned Advocate for Respondent
Nos. 2 and 3, opposed the petition, arguing that the petitioner
was disqualified for non-compliance with mandatory tender
requirements. He noted that the tender, with a proposed
contract period of 9 years, was evaluated 70% on technical
and 30% on financial aspects. Clause 2.10 clearly stated that
only bidders meeting the mandatory requirements were
considered for technical evaluation. He emphasized that
Clause 2.1, which outlined the technical capacity of bidders,
mandated the submission of ESIC and PF challans under
Clause 7 of Condition 2.10 as well as Condition 2.1.
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12. Mr. Dande further argued that the affidavit submitted
under Clause 2.8 was false, as M/s. Ramky Energy &
Environment Ltd., an associate of the petitioner, had its
contract terminated in 2014, and this termination was not
stayed in any proceeding, including arbitration proceedings.
He contended that the labour license certificate was a
mandatory document, and Clause 6.4.3(i) was also a
mandatory requirement, not an ancillary one. The petitioner
failed to demonstrate compliance with Clauses 4 to 9 of the
impugned communication.
13. Mr. Mone, learned Advocate for Respondent No. 4,
argued that Clause 2.1 was a mandatory requirement that
called for the submission of PF challans and ESIC registration
details, independent of the documents required under Clause
7 of Condition 2.10. The corrigenda relied upon by the
petitioner dated 22nd May 2024 and 3rd June 2024 modified
Clause 2.10 but did not affect Clause 2.1. Consequently, the
petitioner failed to meet this essential requirement. He further
argued that the submission of a false affidavit regarding the
work order termination of the petitioner's associate
disqualified the petitioner from seeking any relief, as this
constituted misrepresentation. He also submitted that Clause
4.6.3(j) required compliance with all conditions to establish
bid responsiveness. By referring to pages 159 to 198 of the
petition, Mr. Mone asserted that the petitioner failed to
produce the RAL certificate. He relied on the judgments in
Adani Ports and Special Economic Zone Limited vs. Board of
Trustees of Jawaharlal Nehru Port, 2022 SCC OnLine Bom
1326, and Adarsh Bharat Enviro Pvt. Ltd. vs. State of
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Maharashtra and Others, in WP/10230/2024, to support his
contentions.
14. While evaluating merits of the submissions, it would be
appropriate, at the outset to formulate the nature and extent
of judicial review where a challenge is made to the decision of
Technical Evaluation Committee to disqualify a bidder and the
principle which must govern such cases and the extent of
judicial review in contractual matters, particularly concerning
the interpretation of tender conditions, which has been
articulated in several landmark decisions, including Subodh
Kumar Singh Rathour vs. Chief Executive Officer and Ors. ,
(2024) SCC OnLine SC 1682.In this case the issue pertained
to the interpretation of tender terms. A bidder challenged the
tender process, alleging that the terms were arbitrarily
interpreted, affecting fairness and transparency. The Supreme
Court held that while the tendering authority has discretion in
setting and interpreting tender terms, this discretion must be
exercised fairly and reasonably. Courts should not interfere
unless the interpretation is arbitrary, discriminatory, or
violates statutory provisions.
15. In Michigan Rubber (India) Ltd. v. State of Karnataka,
(2012) 8 SCC 216, it was held that judicial review in tender
matters should be limited. The Court should ask: (i) whether
the process or decision is mala fide or irrational, and (ii)
whether public interest is affected. If the answer to both is
negative, interference is unwarranted.
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16. The Supreme Court has emphasized judicial restraint in
tender matters, allowing the tendering authority discretion
while ensuring that public interest is upheld. Judicial review is
necessary only to prevent arbitrary actions by public
authorities. The Court balances the need for discretion with
fairness and transparency, limiting intervention to cases of
arbitrariness or public interest concerns.
17. The Supreme Court has consistently held that High
Courts should exercise discretion under Article 226 only when
public interest is affected. While public authority decisions are
subject to scrutiny, they should not be interfered with unless
there is clear evidence of procedural unfairness or
arbitrariness.
18. In the present case, the Tender Evaluating Authority
cited nine reasons for disqualifying the petitioner, the first
being non-compliance with Clause 2.1. Therefore, the relevant
clause is extracted below:
"2 Mandatory Qualifying Criteria
2.1 Technical Capacity
............The Bidder shall have experience in managing
manpower of minimum 500 no's on their own establishment
JV/Consortium in the field of Collection & Transportation of
Municipal Solid Waste for continuous period of three years. PF
deposit challan should be submitted along with the ESIC
registration details."
2.10 Technical Bid Evaluation Criteria:
Those who are fulfilling the Mandatory Requirement
mentioned above shall proceed for marking as below (do not
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enter anything in the column for points obtained, this is for
NMMC purpose only):
Table 3: Technical Evaluation Bid Criteria
S. Criteria Max Supporting Max
No Category Evaluation Criteria Details Marks Documents Marks
Required
to --- --- --- --- ---
7 Manpower Manpower deployed for SWM work 5 ESIC & PF and
(i) Minimum 500-3 marks Client
(ii) More than 500-5 marks Certificate
19. Upon careful examination of the aforementioned
conditions, it is clear that Clause 2.1, which is stipulated as a
mandatory qualifying criterion, requires the bidder to submit
the PF deposit challan along with the ESIC registration details.
This requirement is in addition to the documents specified in
Clause 7 of Condition 2.10. The corrigenda dated 22nd May
2024 and 3rd June 2024 amended Clause 2.10, but did not
alter the requirements of Clause 2.1. Furthermore, Clause
2.10 explicitly states that only bidders who meet the
mandatory requirements mentioned therein shall proceed to
the technical evaluation stage.
20. The documents submitted by the petitioner indicate that
the EPF challans provided were for the months of February,
March, and April 2024, covering 213 workers. The manpower
figures of 4,647, 3,353, and 3,274 submitted by the petitioner
pertain to the months of September, October, and November
2020. Clause 2.1 mandates the submission of PF deposit
challans along with ESIC registration details for a continuous
period of three years, a requirement that was not modified by
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the corrigenda dated 22nd May 2024 and 3rd June 2024.
Therefore, we conclude that the tender evaluation authority
correctly concluded that the petitioner had failed to comply
with Clause 2.1 of the NIT.
21. The next ground for disqualifying the petitioner was the
non-compliance with Clause 2.8 of the NIT, which reads as
follows:
"2.8 Non-Eligibility for Tendering the Project/ Work
The bidders, partnership firm, Private Ltd. Company, limited
company or any other associates Company which have been
adjudged by the Hon. Court of Law insolvent or by any GOI
and GOM entity, Public Sector Undertaking or any ULB in
Maharashtra or in India for any type of municipal supply,
work or services is not eligible to submit any offer. In event
of the cases pending in any Hon. Court of Law, the bidder
should give the details of the same, failing which if disclosed
at any stage, the assignment of LOI/acceptance letter, Order,
contract shall be liable to be terminated.
a) ..........
b) .........
c) Bidder/its associates/parent/subsidiary should not
have been blacklisted / debarred / Terminated during
on or before the date of bid publication by any
ULB's/Municipal corporations/Govt/Semi Govt body in
the past for non-performance etc. unless it is mutually
resolved, or court has given interim relief for the same.
(d) Bidders should submit an affidavit for the same
on a stamp paper of Rs. 100/-".
22. A reading of Clauses (c) and (d) of NIT Condition No. 2.8
clearly indicates that the bidder or its associate must not have
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been blacklisted or had a contract terminated by any
municipal corporation in the past for non-performance, unless
the issue has been mutually resolved or a court has granted
interim relief in the matter. The petitioner contends that the
order dated 20th July 2016, passed by the sole arbitrator in
the arbitration proceedings between NDMC and M/s. Ramky
Energy and Environment Limited, constitutes interim relief.
However, upon going through the order, it becomes evident
that it merely clarifies that the termination of the applicant's
contract shall not impede the applicant's participation in
tenders floated by the South Delhi Municipal Corporation. It is
undisputed that M/s. Ramky Energy and Environment Limited
is an associate of the petitioner. This order cannot be
considered as interim relief that would stay the termination of
the contract. Accordingly, the tender evaluation authority's
reasoning for declaring the petitioner ineligible requires no
interference.
23. The third reason is non-compliance with Clause 2.1 of
NIT Conditions which reads as under:
"2. Mandatory Qualifying Criteria
2.1 Technical Capacity
The Bidder should have a valid labour license for any
contract in Maharashtra.
24. The condition in question required bidders to possess a
valid labour license for any contract in Maharashtra. However,
this condition was modified by the corrigendum dated 22nd
May 2024, which reads as follows:
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"Sr. Clause Existing Clauses Revised Clauses
No. Reference (To be read as)
1 to ..... ..... .....
Page The Bidder should have The successful bidder should
5 No.16, a valid labour license submit labour license of
Clause for any contract in Maharashtra state before
no.2.1 Maharashtra commencement of the work."
..... ..... .... .....
25. Relying on the corrigendum dated 22nd May 2024, the
petitioner argued that the term "bidder" was replaced by the
words "successful bidder," thereby requiring the submission of
the labour license only before the commencement of work.
The petitioner is, therefore, correct in asserting that this
condition applied exclusively to the successful bidder.
26. The fourth reason for declaring the petitioner's bid as
non-responsive was that the sample submitted by the
petitioner did not conform to the specified requirements. The
relevant technical specification is set forth in Clause No.
12.6.3, which reads as follows:
"Sr. Clause Existing Clauses Revised Clauses
No. Reference (To be read as)
to ..... ..... .....
Page ..... .....
/119, clause The bins with grey The bins with grey body
no.12.6.3, body (RAL 7021 ) are (RAL 7021) are to be
Technical to be manufactured manufactured with at least
specification with at least 80% 80% recycled content or
recycled content. HDPE Virgin Plastic."
..... ..... .... .....
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27. The petitioner contends that File No. 4, submitted along
with the technical bid, contains all the documents establishing
the specifications of the bins offered. Relying on the
documents at pages 209 and 211, the petitioner asserts that
the contents of these documents serve as certification of the
specifications required by the tender conditions. However, the
Tender Evaluation Authority determined that the bins supplied
by the petitioner did not meet the required specifications. The
tender conditions mandated that the lid of the bins be RAL
certified. The petitioner has not provided any evidence to
demonstrate that the lid of the sample bin submitted was RAL
certified. Thus, the respondent correctly disqualified the
petitioner on this ground.
28. The fifth reason concerns the requirement for the bidder
to submit a letter from their manufacturers in accordance with
Annexure-G. Annexure-G outlines a format to be submitted to
the Commissioner of respondent No. 2, stating the name of
the manufacturer and providing assurance of full technical
support, including the uninterrupted supply of spares,
materials, and services, until the completion of the contract.
Upon reviewing the certification produced by the petitioner
from page 237 onwards, we are satisfied that the petitioner
complied with the requirement to submit a letter from the
manufacturer. Therefore, the fifth reason cited by the
respondent is arbitrary.
29. The sixth reason for rejecting the petitioner's bid
pertains to non-compliance with Clause 6.4.3(j). The relevant
condition is extracted below:
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"6.4.3 Responsiveness of the Tender Officer
The bids submitted by the bidders should satisfy the
following conditions to establish its responsiveness.
(a) to (i). ----
( j). The bidder shall implicitly give the Navi
Mumbai Municipal Corporation right to investigate or inspect
the qualifying information or sites of ongoing works; an
undertaking to this effect is desired with the offer."
30. According to the petitioner, the condition in question is
not mandatory, and therefore, non-compliance should not
lead to disqualification. However, upon reviewing Clause 6.4.3
of the tender document, it is clear that the bidder is required
to meet all conditions, including sub-clause (j), to
demonstrate responsiveness. The petitioner failed to submit
the necessary document as required by sub-clause (j). This
Court cannot declare a condition to be merely ancillary, as the
tendering authority is the best judge of its own requirements
and is entitled to interpret the tender document in a manner it
deems appropriate, provided such interpretation is neither
arbitrary nor irrational. This Court cannot substitute its own
interpretation or engage in an evaluation that falls outside the
permissible scope of judicial review. Therefore, the petitioner's
argument that the condition is ancillary in nature cannot be
accepted.
31. The seventh and ninth reasons for declaring the
petitioner's bid non-responsive pertain to Clause 2.6(v), which
is as follows:
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"2.6 Essential Technical Backup
i. to iv. ---
v. The technology provider and manufacturer/
authorized dealer of the specified Vehicles & Equipment,
in India or abroad, must have ISO 9001 & ISO 14001 or
higher certification."
32. The petitioner argued that no documents were required
to demonstrate compliance with the ISO certification,
asserting that certificates for the mobile garbage compactor,
RFID, and GPS suppliers were recommendatory. However,
upon reviewing Clause 2.6(v), it is clear that the requirement
is mandatory under the tender document. Therefore, the
failure to provide evidence that the technology provider and
manufacturer/authorized dealer held ISO 9001 and ISO 14001
or higher certification constitutes non-compliance.
33. The final reason for disqualification concerns non-
compliance with Clause 2.6(iv), which is reproduced below:
"2.6 Essential Technical Backu.
i. to iii. ----
iv. The original designer and technology
provider/manufacturer/authorized dealer for Mobile
Garbage Bins must have 10 years of experience and
must have manufactured 10,000 units of the specified
Mobile Garbage Bins in the past five years, as
technology provider and manufacturer. A copy of the
work order should be attached."
34. The petitioner contended that the documents at pages
257 and 258 demonstrate compliance with Clause 2.6(iv), as
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the Goa Waste Management Corporation had certified, by
letter dated 9th February 2008, that OTTO Waste Systems
Private Limited was awarded a contract for the supply of solid
waste management equipment under a rate contract for three
years. Upon reviewing the document, we are satisfied that the
petitioner has complied with this condition.
35. For the foregoing reasons, we are convinced that the
tender evaluation committee has correctly determined that
the petitioner failed to comply with six conditions, rendering
its bid non-responsive. Consequently, we are of the view that
it would neither be appropriate nor proper for this Court to
intervene in the impugned decision by exercising its writ
jurisdiction under Article 226 of the Constitution of India,
particularly in light of the well-established principles governing
the exercise of such jurisdiction in matters concerning the
award of public contracts.
36. The writ petition accordingly stands dismissed. No costs.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
