High Court · 2024
Facts
[1] WP / 4755 / 2024 Judgment Corrected vide Speaking to Minutes Order dated 12-07-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 4755 OF 2024Datta and Datta AssociatesThrough its Proprietor, Mr. Anirudh K. Datta,a Consultancy Firm incorporated underSection 6 and 8 of the Bombay Shops and Establishment Act, 1948 bearing RegistrationNo. PII/EL/00/0043835 (ELLISBRIDGE),having its registered office at 101,Snehshilp Apartment, 66, Swastik Society, Cross Road, Navrangpura,Ahmedabad, Gujarat – 380009.. Petitioner Versus1] The State of Maharashtra Through its Principal Secretary2] The Secretary (Works) PWD, Mantralaya, P.W.D. Mantralaya, Mumbai, Fort, Mumbai, Maharashtra, India 400 0323] The Additional Chief Secretary, PWD, Mantralaya, 3rd Floor, P.W.D. Mantralaya, Fort, Mumbai, Maharashtra, India 400 0324] The Executive Engineer, P.W. Division, Dharashiv Bandhkam Bhavan, PWD Campus, Samta Colony, Dharashiv (Osmanabad)-4135015] The Superintending Engineer, P.W. Electrical Division, Dharashiv, Bandhkam Bhavan, PWD Campus, Samta Colony, Dharashiv (Osmanabad) -4135016] The Dy. Chief Architect, P.W. Region, Ch. Sambhajinagar, Bandhkam Bhavan, PWD Campus, Samta Colony, Dharashiv (Osmanabad)-413501
Legal Reasoning
[11] WP / 4755 / 2024were treated at par and even the petitioner was cleared in the technicalevaluation and the process was thereafter taken further for financialevaluation. It cannot be said that any prejudice was caused to thepetitioner. Consequently, we are of the view that the petitioner’s thisstand would not be legally tenable.19.Admittedly, subsequently, the financial bids were openedand the marks were allotted depending upon the scores under eachhead and the respondent no. 11 was the highest scorer with 85.82marks. The petitioner secured 83.65. One another bidder FP IndiaProject Management Consultancy Services Pvt. Ltd. could score 85.35and the fourth bidder scored 82.25.20.It is, therefore, quite clear that respondent no. 11 was thehighest scorer and the petitioner was at third place. If such is the state-of-affair, in our considered view, since the petitioner was third in themerit, he cannot be allowed to question the tender process whichultimately held respondent no.11 entitled to secure the contract. It is inthis context, it would be equally important to note that the petitionerhaving participated in the tender process but having stood third in themerit list, cannot be allowed to question the tender process touchingthe eligibility of respondent no. 11. Obviously, quashing the tenderprocess, examining the eligibility of respondent no. 11, cannot be doneat the instance of the petitioner who was third in the merit list [12] WP / 4755 / 2024particularly when the bidder who was second in the merit list is notbefore us.21.It is in this context, in our considered view, the limitationson the powers of this Court to undertake judicial review in contractualmatters will have to be borne in mind. Even if, as is being pointed outby the petitioner, there were certain shortcomings or deviations in theproposal of respondent no. 11, that alone cannot be a ground tostraightaway quash the entire tender process.22.As is indicated in Jagdish Mandal (supra) and N.G.Projects Limited (supra), it is a matter of public work. When thepetitioner having participated in the tender process is limiting hisobjection only to the eligibility of respondent no. 11, he himself havingstood third in the merit of evaluation, cannot be allowed to come with aprayer for quashment of the entire tender process.23. The bidder who was second in the merit would otherwisebe entitled to derive the benefit of same tender process against whomthe petitioner does not have any objection of any kind being notcompliant with any tender qualification. This, in our considered view, isa decisive factor dis-entitling the petitioner from praying for quashmentof the tender process. [13] WP / 4755 / 202424.True it is that the petitioner has been demonstrating as tohow respondent no.11’s offer was as a consortium and the compositionof the consortium has been laid down in clause 3(a) of the tendernotice, however, examining the aspect as to if the collaborators wereequally eligible under those parameters would be academic in thesense that even if respondent no. 11 was non-compliant to someextent, that alone cannot be a ground for quashing the entire tenderprocess when the other bidder is not before us and against whom thepetitioner has no grievance on any count.25.The upshot, even if there are certain deviations, when theevaluation has taken place by the committee comprising of severalhigh ranking officials as mentioned herein-above and when there areno allegations about mala fides, one can proceed on the premise thatthe deviations must have been treated as minor ones while evaluatingthe proposals.26.This Court cannot undertake any scrutiny particularly whenit is merely a work of consultation and not for carrying out anyconstruction as such. Besides, the petitioner having participated in theprocess and having stood third in the merit list, according to themarking system of evaluation, the tender process cannot be quashedat his instance when the bidder who stood second in the merit is notbefore us and whose eligibility is not under cloud / question.
Arguments
[2] WP / 4755 / 20247] The Dean, Government Medical College & Hospital, Dharashiv 2JP+HM3, Civil Hospital, Premises, Marwadi Galli, Osmanabad, Maharashtra 4135018] The Superintending Engineer, V & Q.C. Circle, Ch. Sambhajinagar, Bandhkam Bhavan, PWD Campus, Samta Colony, Dharashiv (Osmanabad)-4135019] The Superintending Engineer, P.W. Circle, Dharashiv Bandhkam Bhavan, PWD Campus, Samta Colony, Dharashiv (Osmanabad)-41350110] The Chief Engineer, P.W. Region, Ch. Sambhajinagar, Bandhkam Bhavan, PWD Campus, Samta Colony, Dharashiv (Osmanabad)-41350111] M/S Indrajit & Rupa Nageshkar R.S. No 380/E, Rajaram Rifles Colony, Rajarampuri 13th Lane (East), Kolhapur-416008, MH, India .. Respondents...Advocate for petitioner : Mr. Rahul A. Tambe a/w Mr. Tushar Kadam and Adv.Mrunalini Lanjewar i/b MDP and PartnersAGP for the respondents no. 1 to 10 : Mr. R.S. WaniAdvocate for respondent no. 11 : Mr. Prashant Chavan with Mr. Ravindra Chile and Mr. Tejas Hilge i/by Mr. Madhur A. Golegaonkar ... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 02 JULY 2024PRONOUNCED ON : 10 JULY 2024JUDGMENT (MANGESH S. PATIL, J.) :Heard. Rule. Rule is made returnable forthwith. LearnedAGP waives service for respondents no.1 to 10. Mr. Prashant Chavanwaives service for respondent no. 11. [3] WP / 4755 / 20242.At the joint request of the parties, the matter is heard finallyat the stage of admission. 3.The facts leading to the filing of this petition may besummarized as under:-(a)Respondents no. 1 to 10 are the state and itsfunctionaries. Respondent no. 2 floated a tender by publishing noticedated 22-12-2023 for the work “Idea Competition for Consultancy forthe Work of Construction of 100 Students Medical College and 430bedded Hospital at Dharashiv, Taluka and District – Dharashiv”.(b)The petitioner as also respondent no. 11 submitted theirrespective offers. It was an online process. The technical bids wereopened on 06-02-2024. All the bidders made presentations on16-02-2024 and 29-02-2024. The technical scores were published on01-03-2024. The petitioner, respondent no. 11 and two others weredeclared to be qualified. (c)Finding that the petitioner was given 2 less marks ascompared to other bidders, he sought clarification from respondentno. 2 by communication dated 04-03-2024. Without responding to it,the technical scores were published on the e-procurement portal. [4] WP / 4755 / 2024(d)The petitioner alleges that the financial bids were openedwithout any notice to the petitioner. The petitioner became aware onlyon 09-03-2024 that the final scores were published. Since thereafter inspite of several communications, there was no reply by respondent no.2. The earnest money was refunded on 12-03-2024.(e)It is then alleged that thereafter the petitioner perused thedocuments furnished by respondent no. 11 and realized that it wassuffering from several shortcomings and deficiencies. It could not haveeven gotten through the technical bid evaluation. He tried to point outthe illegalities to respondents no. 2 to 10 but in vain. Hence, thispetition. 4.Learned advocate Mr. Tambe would take us through thepapers. He would submit that respondent no. 11 submitted the offer asa consortium. Clause 3.2 could admit of such consortium. However, inviolation of clause, respondent no. 11 had failed to furnish agreementswith each of the collaborators. There was no declaration as to who wasthe lead consultant in any of these agreements. The agreements witheach collaborator were separately entered into which it could not havedone. It had no demonstrable track record of rendering the services inrespect of architectural concept / design of any medical college. Therequirements of performance in the form of designing green buildings [5] WP / 4755 / 2024of at least 25,000 square meter built up area was also lacking. It wasnot substantial compliance of the requirement. Even it was not fulfillingthe requirement of having average annual turnover as consultant of notless than Rs. 2.25 crores during last five years, even if the criterionregarding the turnover in the case of consortium was stated to beevaluated on proportionate basis. There was no transparency todemonstrate as to how respondent no. 11 as a lead consultant couldqualify on this count. None of the collaborators in the consortium ofrespondent no. 11 was having any experience in planning of anyhospital and medical college building.5.Mr. Tambe would then submit that though respondent no.11 submitted profiles of firms Jayant Kolte Architects and MEP SystemDesign Solution LLP who were shown to have experience indesigning / constructing hospital and medical colleges. Respondentno. 11 had not tendered any consortium agreement with either of them.6. Mr. Tambe would then submit that even respondentno.11’s offer was lacking a medical consultant. The person who wasnamed as medical consultant was shown to be engaged withrespondent no. 11 on contractual basis without any details orparticulars. In fact his CV demonstrated that he was an employee ofanother company and was having merely experience of supervisingthe work on the site at the government medical college and hospital, [6] WP / 4755 / 2024Baramati. Mr. Tambe would then submit that respondent no. 11 hadnot submitted the requisite documents to demonstrate is eligibility andhad rather practised fraud and still was allowed to get through the bidarbitrarily.7.Mr. Tambe would then submit that as per the schedule ofthe tender process, the technical bids were to be opened on05-02-2024, however, it was not done and without any intimation to thepetitioner, it was opened on 06-02-2024. In breach of the principles ofconfidentiality, the bidders were made to make presentation on twodifferent dates i.e. 16-02-2024 and 29-02-2024. Though it wasincumbent on the part of respondent no. 2 to declare the full technicalscores on 01-03-2024 and though it was declared that the biddersscoring minimum of 75% alone would qualify for financial bid openingprocess, the complete scores were not declared and in an arbitrarymanner, subsequently the financial bids were opened in a hastymanner. It was in violation of the conditions 13.3 to 13.5 of the RFPwhich was in gross violation of the principles laid down in the matter ofAshok Kumar Goel Vs. Public Information Officer (LPA no. 190 of2012) of the Delhi High Court.8.Mr. Tambe would submit that indiscriminately andoverlooking several shortcomings in the offer of respondent no. 11,arbitrarily 65 marks were allotted out of 65 and in spite of he raising a [7] WP / 4755 / 2024query, there was no response. The entire tender process has beenundertaken in an arbitrary manner in order to allot the contract torespondent no. 11. The tender process be scrapped and to direct it tobe conducted afresh. He relies upon the judgments of the SupremeCourt in the matters of Tata Motors Ltd. v. BEST and Ors.; AIR 2023SC 2717, Balaji Surgical, Nashik v. State of Maharashtra andothers; 2024 (3) Mh. L.J. 359, Maa Binda Express Carrier andanother Vs. North-East Frontier Railway and others; (2014) 3 SCC760 and Jagdish Mandal v. State of Orissa and others; (2007) 14SCC 517, 9.Learned AGP would oppose the petition and would submitthat this Court has inherent limitations in interfering in the tenderprocess and the principles have been reiterated in the matters ofJagdish Mandal (supra), Montecarlo Ltd. v. NTPC Ltd. ; (2016) 15SCC 272 and N.G. Projects Limited Vs. Vinod Kumar Jain andothers; (2022) 6 SCC 127. There was no violation of any condition ofthe tender process. Technical assessment was done based on theresponsiveness to the terms of reference and by application of specificevaluation criterion and sub-criterion, as detailed in the data sheet andno interference be made.10.Learned advocate for respondent no. 11 by referring to hisaffidavit in reply, would submit that the petitioner had not raised any [8] WP / 4755 / 2024objection regarding qualification of respondent no. 11 until conclusionof the evaluation resulting in respondent no. 11 becoming a successfulbidder. Having participated in the tender process, the petitioner hadtaken chance and finding that he was not able to get through thatseveral disputes are being raised as an afterthought. The tenderprocess was conducted in a transparent manner. In view of the lawlaid down by catena of judgments, even if it is held that in some respectand to some extent, the tender process was not strictly in accordancewith the RFP, still, the remedy for the petitioner would be to seekdamages and the petition be dismissed.11.We have considered the rival submissions and perusedthe papers.12.At the outset, it would be appropriate to remind ourselvesof the inherent limitations on the powers of this Court to interfere incontractual or commercial matters, as has been consistently laid downin catena of judgments, the latest being Tata Motors (supra). It is onlywhen there is arbitrariness or irrationality, mala fides and bias that thepower of judicial review can be exercised. Bearing in mind theseprinciple proposition, let us examine the matter in hand.13.It is necessary to emphasize that going by the pleadings,the petitioner is trying to demonstrate the arbitrariness and to some [9] WP / 4755 / 2024extent bias in favour of respondent no. 11 but conspicuously has notalleged any mala fides.14. It is to be noted that clause 13 of the RPF inter aliaprovided for evaluation of proposals. Clause 13.2 contemplatedconstitution of a consultant selection committee (CSC) which wassupposed to carry out the entire evaluation process. It comprised ofthe Chief Engineer, PWD (Chairman), Public Works Region,Superintending Engineer (Member), Vigilance and Quality ControlCircle, Superintending Engineer, Public Works Circle, Dharashiv(Member), Superintending Engineer, Public Works Circle (Electrical)(Member), Deputy Chief Architect (Member), Dean, GovernmentMedical College and Hospital, Dharashiv (Member), ExecutiveEngineer, Public Works Division, Dharashiv (Member Secretary).15.Clause 13.3 expressly provided that the CSC whileevaluating the technical proposals, shall have no access to thefinancial proposals.16.Clause 13.4 provided that the CSC would evaluate thetechnical proposals on the basis of their responsiveness to the terms ofreference and by applying evaluation criterion, sub-criterion specified inthe data sheet. Only responsive proposals could be taken forevaluation. [10] WP / 4755 / 202417.Clause 13.4 thereafter provided for the parameters to belooked into, to consider responsiveness in the form of date ofsubmission of the proposal, annexing all the documents, providinginformation and had to be unconditional. In the absence of which,leading to material deviation or reservation, the proposals could berejected. It also provided for a marking system based on certainevaluation criterion, sub-criterion. Clause 13.7 then provided formethod of selection and laid down that depending upon the weightageto be given and only those proposals who have scored minimum 70 outof 100 marks would qualify for financial bid. The financial proposalswere to be given 30% weightage for assessment of the combinedscores.18.As far as the stand of the petitioner as submitted by Mr.Tambe that deviating from such evaluation method for selectioncontained in clause 13.7, the score-sheet would demonstrate that onlymarks out of 65 were allotted and not 70 and still the process wastaken further and the financial bids were evaluated. It is indeed quiteapparent that contrary to what was provided for in clause 13.7, thetechnical evaluation had taken place only on the parameters byallocating marks out of 65 instead of 70. However, it is quite a matterof record that all the four bidders were allocated marks out of 65 only.Meaning thereby that though there was some deviation, all the bidders
Decision
[14] WP / 4755 / 202427.The writ petition is, therefore, liable to be dismissed.28.The writ petition is dismissed.29.Rule is discharged. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/