Bombay High Court
Friends Engineering Corporation vs Brihanmumbai Municipal Corporation on 10 March, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-OS:4188-DB
1/27 902 WPL 2561-25(1).doc
Digitally signed by MANDIRA
MANDIRA MILIND MILIND SALGAONKAR
SALGAONKAR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2025.03.14 01:45:25
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.2561 OF 2025
WITH
WRIT PETITION (L) NO. 2577 OF 2025
Friends Engineering Corporation .. Petitioner
Versus
Brihanmumbai Municipal Corporation .. Respondents
& Anr.
WITH
INTERIM APPLICATION (L) NO.3411 OF 2025
IN
WRIT PETITION (L) NO.2561 OF 2025
Grundfos Pumps India Pvt Ltd .. Applicant/
Intervener
IN THE MATTER BETWEEN:
Friends Engineering Corporation .. Petitioner
Versus
Brihanmumbai Municipal Corporation .. Respondents
& Anr.
...
Mr. Janak Dwarkadas, Senior Advocate a/w Ms. Namrata
Vinod, Mr. Utsasv Trivedi, Mr. Anudatt Dubey, Mr. Vishal
Acharya, Mr. Jay Sanklecha i/b Shyamsundar Jadhav for the
Petitioner in Writ Petition (L) No. 2561/2025.
Mr. Ashish Kamat, Senior Advocate a/w Mr. Harsh M.,
Ms.Kavita Dhanuka, Ms. Savita Suryawanshi, Adv. Bhavya
Shah i/b Shyamsundar Jadhav for the Petitioner in Writ
Petition (L) No. 2577/2025.
Mr. Zal Andhyarujina, Senior Advocate a/w Ms. Serena
Jethmalani i/b Ms. Ekta Dalvi, for the Applicant in Interim
Application (L) No. 3411/2025.
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Mr. Girish Godbole, Senior Advocate a/w Ms. Chaitalee
Deochake, Mr. Aditya Joshi i/b Ms. Komal Punjabi, for
Respondent No.1- BMC in Writ Petition (L) No. 2561/2025.
Ms. Chaitalee Deochake, i/b Ms. Komal Punjabi, for
Respondent No.1- BMC in Writ Petition (L) No. 2577/2025.
Mr. Virag Tulzapurkar, Senior Advocate a/w Ms. Bindi Dave,
Mr. Kashish Mainkar, Mr. Aryan Dev Dhingra i/b Wadia
Ghandy & Co. for, Respondent No.3 in Writ Petition (L) Nos.
2561 of 2025 and 2577 of 2025.
Mr. Mohit P. Jadhav, Addl.G.P. a/w Mr. Manish Upadhye, A.G.P.,
for Respondent No.2-State of Maharashtra in Writ Petition (L)
No. 2561/2025.
Mr. Abhay Patki, Addl.G.P. a/w Mr. Suraj Gupte, A.G.P., for
Resopndent No.2-State of Maharashtra, in Writ Petition (L) No.
2577/2025.
Mr. Mihir Parekh, Executive Engineer (SWD) BMC.
CORAM : ALOK ARADHE, CJ &
BHARATI DANGRE, J
RESERVED ON : 11th FEBRUARY, 2025
PRONOUNCED ON: 10th MARCH, 2025
JUDGMENT:
- (PER BHARATI DANGRE J)
1. Friends Engineering Corporation, a company
incorporated in India has filed two Writ Petitions, being
aggrieved by the rejection of its technical bid as being 'non-
responsive' by the Brihanmumbai Municipal Corporation
(hereinafter referred to as "BMC"), an authority established
under the Mumbai Municipal Corporation Act, 1888, when it
floated two distinct tenders. Considering the commonality
between the parties and the subject of challenge in the two
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Petitions, we have heard the Writ Petitions together and they
are being decided by a common Judgment.
2. Learned senior counsel Mr. Janak Dwarkadas,
represented the Petitioner in WP (L) No.2561 of 2025,
whereas learned senior counsel Mr. Ashish Kamat,
represented the Petitioner in WP(L) No. 2577 of 2025. The
Brihanmumbai Corporation is represented by learned senior
counsel Mr.Girish Godbole. The successful bidder- Laxmi Civil
Engineering Services Pvt. Ltd., which was impleaded as the
Respondent during the pendency of the Petitions is
represented by learned senior counsel Mr. Virag Tulzapurkar.
3. Rule. Rule is made returnable forthwith. Heard finally by
consent of the respective counsel.
4. Brihanmumbai Municipal Corporation, Respondent No.1,
issued two tenders for upgradation of Storm Water Pumping
Station including supply, delivery, erection, commissioning of
mechanical, electrical, instrumentation and automation works
with repairs of civil works, followed by comprehensive
operation and maintenance of 'Irla Storm Water Pumping
Station in K/W ward' and for 'Hazi Ali Storm Water Pumping
Station in G/S ward' for 15 years, the estimated value of the
work under each tender was set up at Rs.300 Crores.
5. The bid document issued by Respondent No.1 in form of
E-tender notice contemplated a three stage system and
required the bidder to deposit, along with its bid, the earnest
money deposit of Rs.3,35,82,600/-, refundable in accordance
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with the relevant clause of the bid document, from the bid due
date. Packet A was prescribed to contain scanned certified
copies of documents, to be uploaded by the bidder in vendors'
document online. Packet B is the 'Information Qualification',
and several documents were to be provided at this stage.
Packet C is stipulated to be opened, if bid submission in packet
A and B satisfy/include all the requirements and the same is
found to be acceptable to the Authority. The bid document was
spread over in three volumes; (1) Volume I- Invitation for
Tender and conditions of Contract, (2) Volume II-Detailed
scope of work and technical specification, and (3) Volume III-
Price Schedule.
6. The scope of the work was set out in each of the bid
document with instructions to the bidder to ensure the
technical feasibility of his offer after visiting the site and
gathering data, information and conducting its own study.
Since the scope of the work envisaged 'Lump sum Item Rate
Contract', it was clarified that the contractor shall be required
to execute every such item(s) of work(s), which are required
or considered necessary, for the satisfactory completion, and
commissioning, functioning of the entire work(s) including
comprehensive performance maintenance and operation of the
facility, even if such items of work are not specified in the
tender.
7. The technical eligibility criteria and the financial
capacity in the bid was set out in the bid document in clause
2.1 and 2.2, which read thus:-
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"2.1 Technical Eligibility Criteria
The tenderer shall have successfully supplied, installed and
commissioned, during past 10 years in India and carried out
comprehensive operation and maintenance for at least 1 year, (i.e.
as on the date of Tender submission), minimum 1 (one) no. of HT
supply storm water pumping station of capacity not less than 14.4
m3/sec (30% of design capacity) having submersible pumps of
minimum capacity of 6 m3/s at minimum 6.0 ms static head.
Tenderer can be either pump manufacturer or any firm having
authorization from having the experience as stated in for going
para. The tenderer shall submit the letter of authorization from the
manufacturer of submersible pump as per format given tender
documents and shall submit "Memorandum of Understanding"
(MOU) between manufacturer and firm as per attached format.
The firm who qualifies the technical criteria should be in existence
of 10 years.
2.2 Financial Capacity
The Tenderer shall have achieved an average annual financial
turnover as certified by 'Chartered Accountant' equal to
Rs.100,74,76,800/- in the last three (3) financial years immediately
preceding the Financial year in which bids are invited.
The value of executed works shall be brought to current costing
level by enhancing the actual value of work at compounded rate of
10 % per annum; calculated from the date of completion to last date
of receipt of applications for tenders."
8. Clause 3.12 of volume 2 of the bid document set out the
list of manufacturer/makes for mechanical equipments and
instrument presently in use at Storm Water Pumping Station,
and as far as the equipment- 6.6 kv, 6m3/Sec Submersible
type Axcial floor pumps, two preferred makes were mentioned
namely, M/s.Grundfos Pumps India Pvt. Ltd. (for short,
'Grundfos') and Wilo Mather and Platt Pumps Pvt. Ltd. (for
short, 'Wilo'). The aforesaid manufacturers were specifically
enlisted with the intent of 'establishing a standard of
excellence' for the material used as it was set out that all the
equipment to be supplied under the contract has to be from
experienced manufacturer and the equipment of only those
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manufacturers, who have sufficient proven experience of
manufacturing the respective equipment of similar or higher
capacity shall be considered. It was also clarified that the
naming of a manufacturer in the specification is not intended
to eliminate competition or prohibit qualified manufacturers
from offering equipment, but the intention was to establish a
standard of excellence for the material used and to indicate a
principle of operation desired.
In order to achieve standardization for appearance,
operation, maintenance, spare parts and manufacturer service
like items of equipment provided were described to be the end
products of one manufacturer. However, if the contractor
wished to propose alternate makes for the certain equipments,
it was open for him to do so subject the following conditions:-
"1) Demonstrate that the proposed makes are Superior / Equivalent to
the approved makes with specified technical specification
2) Manufacturer involved in manufacture of specified equipment for
at least 10 years before bid date.
3) At least 1 successful installations commissioned with at least
specified technical specification minimum 01 year of operation in last
10 years in India before bid date and satisfactorily operating for at
least one year before bid date. End user certificate shall be provided for
the same."
9. On 26/11/2024, an Addendum was issued to the bid
document modifying clause no.(b) of clause 2.1 and the
relevant clause then read as below:-
"b. Tenderer can be either pump manufacturer or any firm having
authorization or any firm having authorization from pump
manufacturer having the experience as stated in for going para. The
Tenderer shall submit the letter of authorization from the
manufacturer of submersible pump as per formate given tender
documents and shall submit "Memorandum of Understanding" (MOU)
between manufacturer and firm as per attached format. If pump
manufacturer is bidder (individually or as JV member) it cannot issue
authorization letter."
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10. From time to time, the BMC issued corrigendum
extending timelines for submission of the bid and 07/01/2025
was fixed as last date, with the date of opening of packet A &
and opening of packet C, being re-scheduled.
11. It is the case of the Petitioner that at the time of
submission of the bids, it approached Wilo, proposing a
potential joint venture in the bidding however on learning that
it did not possess the operation and maintenance expertise as
required under clause 2.1 of volume I of the bid document, it
approached Grundfos, in its capacity as the preferred make for
the mechanical equipment and instrument.
12. The tender process had participation of 6 bidders and 3
of them chose to tie up with Wilo, whereas the petitioner along
with two other bidders tied up with Grundfos. Worth it to note
that all the 6 bidders executed authorization with either of the
preferred pump manufacturers as contemplated by clause
no.3.12 of the bid document.
13. The Petitioner relied upon two work experience
certificate issued by Grundfos, the first certificate dated
22/11/2019 issued by the Executive Engineer of SWD Project,
in favour of M/s. Grundfos, Pumps Ltd certify, as below:-
"This is to certify that the following equipments have been supplied
by M/s Grundfos Pumps India Pvt. Ltd. at Irla Storm Water
Pumping Station.
...
The above sets of equipments were supplied, installed and the
pumping station was commissioned on 01/06/2011 and operated &
maintained by them till 31/05/2018.
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All above equipments are working satisfactory till date.
This certificate is being issued to M/s Grundfos Pump India Pvt. Ltd.
for tendering purpose only."
Yet another certificate which was relied upon by the
Petitioner for being eligible in the tender process was a
certificate issued by Executive Engineer (M&E) SWD Projects
dated 20/12/2024, which reads thus :
"BRIHANMUMBAI MUNICIPAL CORPORATION
No.DyChe/M&E/955 /SWD Project Date 20 DEC 2024
TO WHOMSOEVER IT MAY CONCERN
This is to certify that submersible axial flow pumps of Make M/s.
Grundfos Pumps India Private Limited has been supplied to
Gazdarbandh Storm Water Pumping Station (SWPS) by M/s. Pratibha
Industries Ltd. and same had been installed and commissioned by M/s.
MEPL-MCPL JV at Gazdarbandh SWPS in presence of representative of
M/s. Grundfos Pumps India Private Limited. Details of equipment's of
make M/s. Grundfos Pumps India Private Limited are as follow:
Sr.No. Product Description Qty
1 Grundfos HT Storm water pumps of 06 nos
6m3/s at 6 m head,550 kW running
on 6.6 kV DG sets
2 Grundfos Pump monitoring/ 06 nos
controlling unit
Cost of project (consisting of civil work and M&E work) allotted to
M/s. MEPL-MCPL JV is Rs.99.52 Cr and Gazdarbandh SWPS was
successfully commissioned on May 2019 & in operation. All the above
equipments are working satisfactorily till date.
This certificate is being issued to M/s Grundfos Pumps India Pvt.
Ltd. on this request vide email dtd 19.12.2024 for tendering purpose
only.
Executive Engineer
(M&E) SWD Projects (i/c)
Ex.Engineer (M&E)
SWD Project"
14. The Petitioner submitted its bid on 6/01/2025, with a
presumption that it was compliant with the bid document
along with the addendum and the corrigendum that was
issued.
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The Petitioner gathered information that on 21/01/2025,
the bidders, who had associated themselves with Wilo received
a communication from BMC, relating to curable short falls in
the bid submitted by them but the petitioner did not receive
any such communication or rather a statement is made that
no bidder having grundfos MOU received any such
communication.
According to the Petitioner, when it perused the
documents uploaded by other bidders having Wilo MOU, it was
noticed that the MOU and the experience letter clearly
revealed that Wilo did not have the requisite eligibility under
clause 2.1 of the bid document, in as much as it had no
experience of 'carrying out comprehensive Operation and
Maintenance (O&M) for last one year'. To demonstrate this the
Petitioner has placed on record, an MOU of M/s. Laxmi Civil
Engineering Services Ltd, dated 3/01/2025, along with the
experience certificate of Wilo.
15. On 23/01/2025, the Petitioner received an email from
BMC informing that its bid is rejected in technical evaluation
but no cause for rejection was mentioned.
During the pendency of the Petitions, the reasons were
supplied for declaring its bid as non-responsive and, hence,
liberty was sought to amend the Petition, by raising a
challenge to the same, by submitting that the disqualification
of the Petitioner based on the exclusion of a particular pump
manufacturer, was an attempt to create monopoly in favour of
other pump manufacturer, so as to eliminate the competition,
which is an arbitrary decision.
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16. During the pendency of the Petitions, since the
commercial bids for the tender work were opened and the
Respondent No.3 was declared as L1 bidder, the petitioner
apprehended that the Corporation shall issue the work order
in favour of the it and hence it prayed for setting aside the
Minutes of Meeting/ letter dated 23/01/2025, as well as the
email dated 24/01/2025, rejecting the technical bid of the
Petitioner as 'non-responsive'.
17. The bids submitted by the Petitioner for both the projects
were held to be non-responsive and the communication dated
23/01/2025 recorded the reasons for non-consideration of the
said documents as below:-
"4) Friends Engineering Corporation
Bidder M/s.Friends Engineering Corporation has submitted
authorization letter of M/s.Grundfos Pumps India Pvt. Ltd. as pump
manufacturer for fulfilling technical eligibility criteria of PQC. M/s.
Grundfos Pumps India Pvt. Ltd. has submitted work experience as a
consortium partner for the work of Irla SWPS. It is to mention here
that, the work of Irla SWPS (consisting of SITC and O&M) was
allotted to M/s.Pratibha-Grundfos-KJi consortium and the SWPS
was commissioned in 2011 and was followed by 7 years of O&M till
2018. The SITC part of the work is completed in 2011, whereas the
work experience required as per PQC is within past 10 years (i.e.
upto 2014). Hence, in this respect, a query was raised by
consultant to advocate, whether the work experience of Irla SWPS
could be considered to meet the PQC considering the fact that SITC
experience is beyond 10 years. As per legal opinion obtained by
consultant from BMC empanelled advocate shri. Anil Sakhare in
this regards (at pg.C-343), work experience of Iral SWPS cannot be
considered for technical qualification for this tender.
Also, M/s.Grundfos Pumps India Pvt. Ltd. has submitted a
certificate wherein it is stated that M/s.Grundfos make pumps are
installed at Gazdarbandh SWPS and installed and commissioned in
presence of representatives of M/s.Grundfos. In this respect, a
query was raised by consultant to advocate, whether the above
mentioned certificate could be considered to meet the PQC. As per
legal opinion obtained by consultant from BMC empanelled
advocate Shri. Anil Sakhare in this regards (at pg.C-346 & C-347),
the certificate can't be treated as a successful SITC of submersible
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pumps for SWPS by bidder/tenderer as M/s.Grundfos does not have
the experience of installation and commissioning as required in
PQC. Accordingly, the authorization letter provided by
M/s.Grundfos to bidder M/s.Friends Engineering Corporation
becomes void. Hence, as recommended by consultant, the bid of
M/s.Friends Engineering Corporation is proposed to be made non-
responsive."
18. Learned senior counsel Mr. Dwarkadas is extremely
critical about approach of the BMC in rejecting the two
certificate on which reliance was placed by it, on the ground
that Grundfos did not have the necessary SITC experience and
citing as below :-
(i) work experience submitted by Grundfos for IRLA SWPS was
commissioned in 2011 followed by 7 years of O & M till 2018. Since
SITC part of work was completed in 2011, this work experience is
not within 10 years.
(ii) Grundfos certificate demonstrating installation of pump in
Gazarbandh SWPS, cannot be treated as successful SITC of
submersible pumps for SWPS, since it was only carried out 'in
presence of representative/ Grundfos'.
He has emphatically urged that Grundfos being a
'preferred manufacturer', the Petitioner's technical bid could
not have been rejected on that ground. It is also submitted by
him that juxtaposed against this, accepting Wilo's certificate,
which lack O& M experience is highly objectionable.
19. The learned senior counsel Mr. Ashish Kamat, has
represented the Petitioner in WPL/2577/2025, and he has
adopted the submissions advanced by Mr. Dwarkadas and has
made a serious grievance that bidders using MOU and
experience of Wilo, were given an opportunity to furnish
documents but the same was denied to the petitioner. In
addition, it is his submission that certain lead members of JV
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did not had necessarily technical experience and infact on
22/01/2025 itself a letter was addressed by the petitioner to
the Corporation to the BMC raising an apprehension that by
favouring Wilo, BMC will undermine the competition and
requested BMC to treat both preferred pump manufacturer
similarly. He would invoke the proposition of law laid down by
the Apex Court in Banshidhar Construction Pvt. Ltd. vs.
Bharat Coking Coal Ltd. & Ors.1(2024) 10 SCC 273, and he
would lay emphasis on observations in paragraph no.21 to the
following effect:-
"21. There cannot be any disagreement to the legal proposition
propounded in catena of decisions of this Court relied upon by the
learned counsels for the Respondents to the effect that the Court
does not sit as a Court of Appeal in the matter of award of contracts
and it merely reviews the manner in which the decision was made;
and that the Government and its instrumentalities must have a
freedom of entering into the contracts. However, it is equally well
settled that the decision of the government/its instrumentalities
must be free from arbitrariness and must not be affected by any
bias or actuated by malafides. Government bodies being public
authorities are expected to uphold fairness, equality and public
interest even while dealing with contractual matters. Right to
equality under Article 14 abhors arbitrariness. Public authorities
have to ensure that no bias, favouritism or arbitrariness are shown
during the bidding process and that the entire bidding process is
carried out in absolutely transparent manner."
20. In support of the Petitioner, M/s. Grundfos Pump India
Pvt. Ltd., has filed Interim Application No.3441 of 2025,
seeking intervention, in the Writ Petitions, in order to apprise
the Court of certain pertinent fact.
According to Mr. Andhyarujina, the learned senior
counsel representing the Applicant, clause 2.1 of the bid
document prescribe the technical eligibility criteria by
1 (2024) 10 SCC 273
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stipulating experience of construction, installation and
commissioning, during past 10 years. He would submit that
Grundfos has entered into a joint venture with M/s. Skyway
Infraprojects Pvt. Ltd., and an MOU executed between them is
placed on record which indicate the mutual support lent by it
to Skyway so as to win the tender in form of supply,
installation, testing, commissioning of submersible axial flow
pumps, both during tender application phase and subsequent
tender execution phase. He would also rely upon the
applicant's experience letter dated 11/11/2019, for work done
at Irla Storm Water Pumping Station and submitted that it is in
light of this letter, the tender dated 28/07/2022, submitted by
Skyway was declared to be technically eligible, though it could
not succeed in commercial bid.
According to the learned senior counsel for the Applicant,
Grundfos was included in the list of preferred makes in the bid
document to establish standard for the products to be used by
prospective contractor and it was having required experience
of successfully supplying, installing and commissioning during
past 10 years in India. He would also rely upon the certificate
dated 20/12/2024, issued by the Corporation itself, upon a
request made by it for issuance of experience certificate for the
pumps supplied by them for 'tendering purposes only'. He
would submit that if this certificate was issued by the
Corporation, how can it be rejected by stating that the
experience will not be counted for the purpose of meeting the
eligibility criteria.
21. Mr. Andhyarujina, has assertively submitted that the
approach of the Corporation has now resulted in a situation,
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where the market for prospective tenderers will have
exclusive monopoly of one single pump manufacturer i.e. Wilo.
22. Learned Senior Counsel, Mr. Virag Tulzapurkar,
representing Respondent No.3, would submit that the
certificate relied upon by the Petitioner has been rightly not
taken into consideration, as the certificate in regards to Irla
project dated 11/11/2019 was admittedly not submitted by the
Petitioner along with the bid document and even if it is to be
accepted, Grundfos meet O & M experience criteria, but not
the SITC experience as the work for the project was completed
well before 10 year period prescribed in the eligibility criteria
of the tender. As far as the certificate at Exhibit M furnished
by Grundfos, according to the learned senior counsel it is no
proof of Grundfos having SITC or O & M experience. On the
other hand, he would rely upon the two certificates issued in
favour of M/s. Wilo on 6/11/2019- Britannia Outfall SWPS
project and Love Grove SWPS project. He has also placed on
record the consortium agreement, where Wilo had undertaken
to provide support for erection, operation and maintenance of
the pumps. It is also his submission that it is a matter of fact
that Wilo has performed and continued to perform the O & M
work for Britannia project and Love Grove project.
23. The learned senior counsel has placed reliance upon the
decision of the Apex Court in case of N.G. Projects Ltd Vs.
Vinod Kumar Jain & Ors.2, in support of his submission that
since the Courts do not possess the expertise to examine the
terms and conditions of the present day economic activities of
the State, they should exercise restrain in interfering with
2 (2022) 6 SCC 127
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contracts involving technical issues, which necessarily
contemplate necessary expertise. According to him the
approach of the Court should not be to find fault with
magnifying glass in it's hands, rather the Court should
examine as to whether the decision making process is fair.
24. Mr.Godbole, the learned senior counsel in regards to the
objection raised in the aforesaid finding on behalf of the
Petitioner, would submit that the two certificates were issued
to M/s.Grundfos Pumps India Pvt. Ltd. and one of them is the
certificate dated 20/12/2024 (Exhibit 'M') and the other one is
dated 07/10/2011, which though not annexed to the Petition,
but is annexed as Exhibit 'A' to their affidavit-in-reply.
According to him, the first certificate dated 20/12/2024 has
reflected that M/s Grundfos Pumps India Pvt. Ltd. was only a
vendor of the original contractor, M/s Pratibha Industries Ltd.
and the contract was terminated after supply of pumps. It was
thereafter awarded to another contractor, M/s MEPL-MCPL
JV. According to him, this certificate is not compliant with
clause 2.1, which require experience of successful supply,
installation and commissioning during past ten years and
comprehensive operation and maintenance for at least one
year. The certificate, according to him, is therefore, only
certification of the fact that the pumps are installed and
commissioned by M/s MEPL-MCPL JV and mere presence of
vendor does not make M/s Grundfos entitled to claim the
experience of work instead of the actual contractor, M/s
MEPL-MCPL JV. Af far as Exhibit 'L', which is relied upon by
the Petitioner is concerned, it is submitted that this document
was not actually submitted alongwith the tender document.
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Another certificate on which the reliance is placed, which
is also not accepted by BMC, as M/s Grundfos Pumps India Pvt.
Ltd. was a consortium member and the project was
commissioned on 31/05/2011 beyond the window period of ten
years and the consultant appointed by BMC had, therefore,
remarked that on the basis of the documents submitted by the
Petitioner that M/s Grundfos does not have experience of
supply, installation and commissioning within last ten years It
is clarified that the bid of the Petitioner is rejected on account
of lack of valid SITC experience of ten years, as according to
the certificate, installation took place on 31/05/2011, which is
beyond the window period of ten years and it was never on the
ground that it lacks O & M experience.
25. Our attention was also invited to the certificate
submitted by Wilo, as it is the specific contention raised on
behalf of the Petitioner, is that the certificate of Wilo is not
compliant with clause 2.1 of the tender. As far as the
certificate of Wilo dated 06/11/2019 is concerned, it is for
design and construction of SWP Station, including supply,
delivery, erection, commissioning of mechanical, electrical,
instrumentation and automation and O &M of Pumping Plant
at Love Grove, Mumbai. The completion date of this project
(for SITC) is 31/05/2015, which is within the window period of
ten years. The certificate also mention that O&M was also the
part of the work allotted to the contractor of which Wilo is
consortium member.
In respect of the specific contention that Skyway
Grundfos JV was qualified in the year 2022 for Mahul SWPS, it
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is the specific stand adopted by the Corporation that there was
a difference in scope of work in both the tenders and the
technical eligibility criteria in both the tenders were not
exactly the same. The Corporation has relied upon the
consultant's report that M/s Grundfos does not meet the
technical eligibility criteria for the tender and, hence, the same
has not been accepted by the Corporation.
26. In response to the contention of the Petitioner, which is
supported by M/s Grundfos, which has been allowed to
intervene and is represented by Mr.Andhyarujina, learned
senior counsel, it is submitted that the bid of the Petitioner was
rejected on the basis of non-fulfilment of the criteria
mentioned in clause 2.1 of the Volume 1. Clause 3.12 provides
for the eligibility criteria for the mechanical equipment and
maker of that equipment, which is not interlinked with the
eligibility under clause 2.1 and, therefore, it is the specific case
of the Corporation that the question of Petitioner being
compliant with clause 3.12 will arise only if the Petitioner
satisfies the criteria mentioned in clause 2.1. When the expert
consultant, appointed by the Corporation, did not find the
Petitioner satisfying the criteria mentioned in clause 2.1 due
to lack of valid SITC experience within ten years, the argument
advanced is, this Court will not act as a tendering authority,
which is capable of judging its requirement in a better way.
27. When the certificate dated 22/11/2019 (Exhibit 'L'),
which though not submitted alongwith the tender document,
but even for the sake of argument is to be looked into, is
manifestly read, as per the said certificate, the project was
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commissioned on 01/06/2011, which makes the SITC
experience beyond the period of ten years and even if the O&M
experience of Irla project is considered positively, the SITC
cannot be considered to be in compliant with cause 2.1.
There is no denial to the assertion in the affidavit that
the certificate dated 11/11/2019 (Exhibit L) was not included
in packet A and B.
As per the Respondent No.1, during technical evaluation,
Petitioner had submitted a certificate dated 7/10/2011 issued
by SWD department to Pratibha- GIN- KJI Consortium for the
work of Irla SWPS. This certificate is annexed along with the
reply affidavit of the Corporation and is captioned as 'Work
Performance Certificate' and is worded as below:-
'This is to certify that M/s. Pratibha Industries Limited. (Lead Partner
of PRATIBHA-GIN-KJI CONSORTIUM) having office at Shrikant
Chambers, Phase-2, 5th Floor, Sion-Trombay Road, Chembur, Mumbai
400071, has been awarded the subject work and they have
commissioned the project and details of the Project are as under:-
1 Name of Work Design and Construction of
Storm Water Pumping
Station including supply,
delivery, erection,
commissioning of
Mechanical, Electrical,
Instrumentation and
Automation works and
Comprehensive operation
and maintenance of
pumping plant at IRLA,
Mumbai with 7 years
Operation and Maintenance.
2 .... ....
3 .... ....
4 .... ....
5 Date of Commencement 18/02/2008
6 Date of physical 14/06/2010
commissioning of Project
(without SCADA) and
Commencement of
Operations
7 Date of Commissioning of 31/05/2011
Project (With SCADA)
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At the bottom of the certificate it is stated that the
certificate is issued on request of Pratibha Industries Ltd as
per their request letter dated 5/10/2011.
28. It is the specific stand adopted by the respondent
corporation that since the petitioner did not meet the
eligibility criteria in clause 2.1(A) of having supplied,
installed, commissioned during past 10 years and carried out
comprehensive O & M for at least one year (i.e. as on date of
tender submission, minimum 1 (one) number of HT supply
Storm Water pumping station of the desired capacity having
submersible pumps prescribed, it do not qualify itself in the
technical eligibility criteria.
As far as clause (b) of clause 2.1, prescribing the
technical eligibility criteria is concerned, an option is made
available by providing that the tenderer can either be a pump
manufacturer or it can be any firm with authorization from
pump manufacturer who has the experience set out in clause
(a). To demonstrate this, the tenderer is required to submit
letter of authorization from the manufacturer as per the
format given in tender document. Clause No.2.1 being a Pre-
qualification Criteria (PQC), if the tenderer is not the
manufacturer and in this case both the petitioner as well as
the Respondent No.3, by relying upon clause (b) participated
in the tender process, it was necessary that the manufacturer
of the pump either Wilo or grundfos to meet the requirement of
clause 2.1(a). The appendix (Section-14) of the bid document
has provide the proforma for 'Memorandum of
Understanding/Undertaking' to be submitted and it specifically
contain the following recital:-
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"AND WHEREAS the FIRST PARTY is desirous to submit the Tender
Application for the Project and the condition of the Tender
document permits/requires collaboration with the Original
Equipment Manufacturer of...........
AND WHEREAS the SECOND PARTY, being an experience
manufacturer of the......... and has designed, manufactured, and
supplied the......... as specified in the Tender documents; has agreed
to associate with the FIRST PARTY in the form of
Collaboration/Support. The SECOND Party shall provide technical
support during Operation and Maintenance of the Pumping station
to the FIRST PARTY and shall provide continuous support in supply
of spare parts to the FIRST PARTY throughout the life of the
Project.
AND WHEREAS the SECOND PARTY has agreed to
Collaborate/Support and provide technical assistance during the
operations and maintenance of the Project till the expiry of the
Contract Period for the said Project."
29. In addition, Annexure E also contain the manufacturer's
authorization certificate to be furnished under the seal of the
manufacturer certifying that, "M/s..... (firm) is authorized by
M/s..... (pump manufacturer) for providing technical
experience of the specification set out in the tender notice and
with a specific undertaking and declaration to provide all
necessary technical support for the work followed, by
comprehensive operation and maintenance during the
contract period."
30. Fulfillment of the stipulation set out in clause 2.1(a) to
be read along with clause (b) is the essential condition in order
to meet the threshold of technical criteria to make the bidder
eligible for the commercial competition. Clause 3.12 of Volume
2 of the tender document has enlisted certain manufacturer/
makes of mechanical equipments and instruments presently in
use at Storm Water Pumping Station, which are preferred
makes. But according to us, merely by standing with the
support of any of the preferred make, the bidder is not
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absolved of meeting the 'technical eligibility criteria' as
specified in clause 2.1 of Section 2 of Volume 1 of the bid
document.
Despite indicating the preferred make, it is permissible
for a bidder to propose the equipment of any other
manufacturer who fulfill the technical parameters and this is
indicative of the fact that clause 3.12 do not necessarily dilute
the criteria of technical eligibility prescribed in clause 2.1.
31. Dealing with the contention of the Petitioner that
opportunity was given to the bidders, who had tied up with
Wilo to submit the documents, the Executive Engineer (M& E),
SWD Project, in his affidavit, has responded as below :-
"I say that as per the tender condition i.e. Vol-I Section-6 (internal
page no.38), only in cases of maximum 5 number of curable defects,
the bidders are asked to submit a clarification/shortfall documents.
However, inadequacy of technical capacity with respect to eligibility
criteria is considered as 'non-curable defect'. Hence, only the
responsive bidders were informed to submit clarifications/shortfall
documents for curable defects. I therefore deny the allegations of
the Petitioner that the other bidders were informed about the
curable defects and Petitioner was not informed."
32. As regards the objection of the Petitioner that the
Experience Certificate of Wilo lacks O & M experience, as
stated in the affidavit, Exhibit 'O' is the Memorandum of
Understanding/undertaking between M/s Laxmi Civil
Engineering Pvt. Ltd. i.e. Respondent No.3 and M/s Wilo and
which is accompanied by the list of existing installments with
the end user, being the Municipal Corporation of Greater
Mumbai.
Respondent No.3 had submitted two certificates dated
06/11/2019 from the MCGM in respect of two projects;
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Britannia Outfall storm Water Pumping Station, Reti Bunder
Bay, Reay Road, Mumbai and for design and construction of
Storm Water Pumping Station at Love Grove, Mumbai.
The first certificate certify as below :
"For MCGM-Britannia SWPS Project, UNITY M&P-WPK Consortium
member Wilo Mather and Platt Pumps Private Limited as designed,
manufactured, tested, erected & commissioned AXIAL FLOW
SUBMERSIBLE PUMPS with Canister pipes as per the technical
details given below :
Pump Manufacturer : Wilo Mather & Platt Pumps Private Limited
Pump Type : Axial Flow Submersible Pump"
At the bottom of the certificate, the following note is to be
found :-
"These Pumps installed at Britannia SWPS in June 2016 & put in to
operation since July 2016.
Pumps are working satisfactory as on date.
This certificate is issued as per the request from WILO-M&P for
tender purpose only."
33. In the second certificate, it is certified thus :-
"For MCGM-Pumping Plant at Love Grove, UNITY M&P-WPK
Consortium member Wilo Mather and Platt Pumps Private Limited
has designed, manufactured, tested, erected & commissioned
AXIAL FLOW SUBMERSIBLE PUMPS with Canister pipes as per the
technical details given below :
Pump Manufacturer : Wilo Mather & Platt Pumps Private Limited
Pump Type : Axial Flow Submersible Pump"
And at the bottom, the following note is made.
"These Pumps installed at Love Grove Pumping Plant in May 2015
& put in to operation since June 2015. The pumps are working
satisfactorily as on date.
This certificate is issued as per the request from WILO-M&P for
tender purpose only."
34. The objection in regards to the two certificates from Wilo,
which had made Respondent No.3 the eligible bidder is, that it
is without O&M. This objection deserve a rejection, specifically
qua the certificate for Love Grove, Mumbai, as the Corporation
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has specifically described the project by including 'O&M of
Pumping Plant at Love Grove, Mumbai', clearly indicating that
the project is certified including O & M. In any case, the
specific stands of the Corporation is, that the pumps installed
at Britannia SWPS and Love Grove, Mumbai plant are in
operation and working satisfactorily and from which, the
inference drawn by the Corporation is that after its
installation, the pumps are in operation and maintained by the
pump manufacturer, Wilo Mather and Platt Pumps Pvt. Ltd.
The explanation offered by Corporation, according to us, is
logical, as Wilo is relying upon its experience in designing,
manufacturing and commissioning of axial flow submersible
pumps, with the technical specification mentioned in the
certificate and these pumps put into operation are certified by
the Corporation, to be satisfactorily working as on date, clearly
indicating that they are operated and maintained till date by
the manufacturer.
The manufacturer authorisation certificate from Wilo in
favour of M/s Laxmi Civil Engineering contains its
undertaking that it shall provide of necessary technical
support, if the tender work is allotted in its favour. The
aforesaid authorisation by Wilo takes care that the pumps
installed and commissioned in the two projects at Irla SWPS
and Haji Ali would be maintained by the manufacturer.
35. In Agmatel India Private Limited Vs. Resoursys Telecom
& Ors.3, the Apex Court has clearly set out a proposition of law
that the author of the tender document is taken to be the best
person to understand and appreciate its requirements, and if
3 (2022) 5 SCC 362
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its interpretation is manifestly in consonance with the
language of the tender document or subserving the purpose of
the tender, the Court would prefer to keep restraint. It is
further held that 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 to interfere.
36. It is a well entrenched position in law that the scope of
judicial review in contractual matters, and particularly in
relation to the process of interpretation of tender document is
very limited and time and again, the Apex Court has
disapproved the interference shown by the High Courts, in the
interpretation by the tender inviting authority of the eligibility
terms, by clearly following the settled position of law that the
authority which authors the tender document is the best
person to understand and appreciate its requirement, and
thus, its interpretation shall not be second-guess by the
constitution court, in judicial review proceedings.
In Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail
Corpn, Ltd.4, it is clearly ruled that the owner or the employer
of a project, having authored the tender document, is the best
person to understand and appreciate its requirement and
interpret its document and the constitutional courts must
defer to this understanding and appreciation of the tender
document unless there is mala fide or perversity in the
understanding or appreciation or in the application of the
tender conditions.
4 (2016) 16 SCC 818
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37. When we have perused the terms of the bid documents,
we have noted that the tendering authority has framed the
requisite experience with an intention to judge the technical
feasibility and operational efficiency of the project. The
Petitioner has never raised a challenge to the condition
mentioned in the tender document, but on participation in the
whole process, when its bid is rejected, on being found non-
compliant with clause 2.1, specifying the technical eligibility
criteria, the Petitioner has approached this Court. The
relevant clause clearly warranted that the tenderer must have
successfully supplied, installed and commissioned, during past
ten years in India and carried out comprehensive operation
and maintenance for at least one year of the HT supply storm
water pumping station of a particular capacity with
submersible pumps of the capacity set out therein. An option
was given that the tenderer can be either pump manufacturer
or any firm having authorisation from pump manufacturer,
having the experience set out in the technical eligibility
criteria. It was necessary to submit the letter of of
authorisation from the manufacturer of the submersible pump,
as per the format given tender document and it was necessary
for him to submit the 'memorandum of understanding'
between the two as per the attached format. The requisite
criteria of the technical eligibility was the experience of past
ten years, with an experience of operation and maintenance of
at least one year.
The certificate relied upon by the Petitioner in favour of
M/s Grundfos, which is a manufacturer, dated 07/10/2011 in
respect of Irla project, does not satisfy the eligibility criteria
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prescribed in clause 2.1, as the installation and commissioning
of the equipments supplied by M/s Grundfos for this project
was completed on 01/06/2011 i.e. well before the ten years
period prescribed, though at the most, it may meet the
eligibility criteria as regards O&M. As far as the document
dated 11/11/2019 is concerned, admittedly it was not
submitted by the Petitioner alongwith the bid document,but
even assuming for the sake of it that this document was
submitted, it is only a proof of Grundfos meeting the O&M
experience criteria, but not the SITC experience. Another
document dated 20/12/2024 (Exhibit 'L') in respect of
Gazdarbandh project is also not a certificate, which would
favour Grundfos, as it was neither the tenderer nor it was any
part of the consortium with M/s Pratibha Industries, as the
project was awarded to M/s Pratibha Industries. In any case,
the contract of M/s Pratibha Industries was also terminated
and the balance work was completed by MEPL-MCPL JV, who
had carried out the installation, testing and commissioning
work and, therefore, this certificate is also not of a
consequence.
38. On the other hand, the certificates submitted by M/s Wilo
are concerned, the certificate dated 06/12/2019-Britania
Outfall SWPS Project, as on date, Wilo continues to perform the
O&M work for Britannia project. Another certificate of
06/11/2019 for Love Grove SWPS project, Wilo has performed
and continued to perform the O&M work for this project and,
therefore, relying upon these two certificates, Respondent
No.3 has been awarded a bid.
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39. The scope of judicial interference in the matter of
tender/contracts being very limited, as the Courts are not
expected to use magnifying glass while scanning the tenders
and make every small issue appear like a big blunder, and,
since the Courts are expected to use "fair play in the joints" to
the Government/Public Sector Undertaking in the matters of
contract, since, we find that a responsible authority like the
Corporation, by appointing consultant and after obtaining the
legal opinion as and when warranted, has found the bid of the
Petitioner non-responsive and, hence, we are not inclined to
show any indulgence.
As a result, finding no merit in the Petitions, Rule is
discharged. Pending Interim Applications, if any, also stand
disposed of.
(BHARATI DANGRE, J.) (CHIEF JUSTICE)
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