Bombay High Court
M/S. R. K. Sancheti, Nagpur Thr. ... vs State Of Maharashtra, Thr. Secretary ... on 22 January, 2024
Bench: Avinash G. Gharote, M. S. Jawalkar
2024:BHC-NAG:849-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6216 OF 2023
1] M/s R.K.Sancheti, Head Office at Petitioners
Satya Sai Apartment, Next to Ajit
Bakery, In front of BSNL Office,
Pratap Nagar, Nagpur-440025,
Through its Partner Rajendra Kisanlal
Sancheti, Age about 68 years,
Occu.:Business, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
2] Rajendra Kisanlal Sancheti, Age about
68 years, Occu.:Business, Partner of
M/s. R.K.Sancheti, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
-Versus-
1] State of Maharashtra, through its Respondents
Secretary (Roads), Ministry of Public
Works, Mantralaya, Mumbai-32.
2] Chief Engineer, Public Works Region,
Amravati.
3] Superintending Engineer, Public
Works Circle, Civil Lines, Yavatmal,
Tq. & Dist. Yavatmal.
4] Executive Engineer, Public Works
Division, Pusad, Tq. Pusad, Dist.
Yavatmal.
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5] Jangid Brothers Developers &
Engineers, through its Partner, R/o
C/o House No.1/14/1992, Pandurang
Nagar, Airport Road, Nanded-431602.
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Mr.Akshay A.Naik with Mr.K.P.Mahalle, counsel for the petitioners.
Mr.A.M. Joshi, AGP for the respondents-State.
Mr.Firdos Mirza with Mr.A.S.Deshpande, counsel for respondent No.5.
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WRIT PETITION NO. 6227 OF 2023
1] M/s R.K.Sancheti, Head Office at Petitioners
Satya Sai Apartment, Next to Ajit
Bakery, In front of BSNL Office,
Pratap Nagar, Nagpur-440025,
Through its Partner Rajendra Kisanlal
Sancheti, Age about 68 years,
Occu.:Business, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
2] Rajendra Kisanlal Sancheti, Age about
68 years, Occu.:Business, Partner of
M/s. R.K.Sancheti, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
-Versus-
1] State of Maharashtra, through its Respondents
Secretary (Roads), Ministry of Public
Works, Mantralaya, Mumbai-32.
2] Chief Engineer, Public Works Region,
Amravati.
3] Superintending Engineer, Public
KHUNTE
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Works Circle, Civil Lines, Yavatmal,
Tq. & Dist. Yavatmal.
4] Executive Engineer, Public Works
Division, Pusad, Tq. Pusad, Dist.
Yavatmal.
5] Deshmukh & Chawhan Construction
(J.V.), through its Partner, R/o C/o
Shri Deshmukh House No.130,
Jawahar Nagar, Dhundi, Tq. Pusad,
Distt. Yavatmal - 445 204.
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Mr.Akshay A.Naik with Mr.K.P.Mahalle, counsel for the petitioners.
Mr.A.M. Joshi, AGP for the respondents-State.
Mr.Firdos Mirza with Mr.A.S.Deshpande, counsel for respondent No.5.
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WRIT PETITION NO. 6230 OF 2023
1] M/s R.K.Sancheti, Head Office at Petitioners
Satya Sai Apartment, Next to Ajit
Bakery, In front of BSNL Office,
Pratap Nagar, Nagpur-440025,
Through its Partner Rajendra Kisanlal
Sancheti, Age about 68 years,
Occu.:Business, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
2] Rajendra Kisanlal Sancheti, Age about
68 years, Occu.:Business, Partner of
M/s. R.K.Sancheti, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
-Versus-
KHUNTE
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1] State of Maharashtra, through its Respondents
Secretary (Roads), Ministry of Public
Works, Mantralaya, Mumbai-32.
2] Chief Engineer, Public Works Region,
Amravati.
3] Superintending Engineer, Public
Works Circle, Civil Lines, Yavatmal,
Tq. & Dist. Yavatmal.
4] Executive Engineer, Public Works
Division, Pusad, Tq. Pusad, Dist.
Yavatmal.
5] Shri Gajanan Construction, throughits
Partner, Jayant Chiddarwar, R/o Udasi
Ward, Tq. Pusad, Dist. Yavatmal.
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Mr.Akshay A.Naik with Mr.K.P.Mahalle, counsel for the petitioners.
Mr.A.M. Joshi, AGP for the respondents-State.
Mr.Firdos Mirza with Mr.A.S.Deshpande, counsel for respondent No.5.
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WRIT PETITION NO. 6236 OF 2023
1] M/s R.K.Sancheti, Head Office at Petitioners
Satya Sai Apartment, Next to Ajit
Bakery, In front of BSNL Office,
Pratap Nagar, Nagpur-440025,
Through its Partner Rajendra Kisanlal
Sancheti, Age about 68 years,
Occu.:Business, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
2] Rajendra Kisanlal Sancheti, Age about
68 years, Occu.:Business, Partner of
M/s. R.K.Sancheti, R/o C/o. M/s.
R.K.Sancheti, Head Office at Satya Sai
KHUNTE
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Apartment, Next to Ajit Bakery, In
front of BSNL Office, Pratap Nagar,
Nagpur-440025.
-Versus-
1] State of Maharashtra, through its Respondents
Secretary (Roads), Ministry of Public
Works, Mantralaya, Mumbai-32.
2] Chief Engineer, Public Works Region,
Amravati.
3] Superintending Engineer, Public
Works Circle, Civil Lines, Yavatmal,
Tq. & Dist. Yavatmal.
4] Executive Engineer, Public Works
Division, Pusad, Tq. Pusad, Dist.
Yavatmal.
5] B.K.Construction & Ajinkya Mahendra
Umbarje, through its Partner, R/o C/o
Ward No.2, Near Makka Masjid, Gadi
Ward, Pusad-445 204.
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Mr.Akshay A.Naik with Mr.K.P.Mahalle, counsel for the petitioners.
Mr.A.M. Joshi, AGP for the respondents-State.
Mr.Firdos Mirza with Mr.A.S.Deshpande, counsel for respondent No.5.
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CORAM : AVINASH G. GHAROTE &
SMT. M. S. JAWALKAR, JJ.
DATE : 22ND JANUARY, 2024
ORAL JUDGMENT (P. C.)
Heard.
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2. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.
3. On 14/09/2023, this Court (Mr. A. S. Chandurkar and Mrs.V.S.Joshi, JJ), while issuing notice had directed that prima facie considering the reasons for rejection of the petitioners technical bid, the work order if not issued, shall not be issued without obtaining leave of the Court.
4. On 08/01/2024, we had recorded the following position :
4.1. Writ Petition No.6216 of 2023 questions the rejection of the tender submitted by the petitioners for the works of improvement to Pimpaldari Dhanaj Malasoli Gaul Botha Dharmoha Mudana Road MDR-38 in KM 20/00 to 23/500 and KM 31/00 to 34/500 (Near Gaul and Mudana Village) Tq. Mahagaon District Yavatmal.
4.2. Writ Petition Nos.6227 of 2023, 6230 of 2023 and 6236 of 2023 also question the rejection of the tender of the petitioners for the works as indicated herein. The grounds of rejection are common, and therefore, all these petitions can be decided together.
4.3. For the purpose of convenience, we are referring Writ Petition No.6216 of 2023. The grounds of rejection of the bid of the petitioners, as reflected from the communication dated 07.09.2023 (Page 289), are four in numbers as under :
1) Litigation information was not submitted.
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2) Difference balance of work have been submitted for bid capacity for Pusad, Umarkhed and Pandharkawada.
3) Petitioner was recommended for black listing.
4) All concerned documents for "A and B" not submitted.
4.4. Mr Naik, learned counsel for the petitioners questioning the above position by inviting our attention to Clause 3.6.5 (Page 60) contends that what is required to be disclosed is the litigation history, regarding contracts completed or under execution for the last five years, and therefore, the statement made that there was no litigation pending on the date of submission of the bid, which was 07.08.2023 was correct (Page 321). In respect of the chart of litigation history filed by the respondent No.5 (Page 342), it is contended that insofar as MCA No.688 of 2022 is concerned that is the proceeding against the Assistant Provident Fund Commissioner, Nagpur, and therefore, had no relevance. Insofar as Writ Petition No.1946 of 2020 and Writ Petition No.2448 of 2021 are concerned, it is contended that these questioned the tender notices, and therefore, were pre tender litigation and also had no bearing requiring them to be disclosed in light of the language of Clause 3.6.5. Insofar as Writ Petition No.5100 of 2023 is concerned, it is contended that the petition was filed on 09.08.2023, whereas the bid was submitted on 07.08.2023, and therefore, non disclosure of the same cannot be said to be a ground for disqualification.
4.5. Insofar as the second ground is concerned, it is contended that even if it is presumed that different bid capacity was submitted for the works at Chandrapur and KHUNTE WP-6216.23+3-J Tenders.odt 8/27 Pandharkawada and even if they were considered to be incorrect that would entail in rejection of the bids for the works at Chandrapur and Pandharkawada and would not be relevant and germane for deciding the bid capacity for the works at Pusad, in respect of which, the correct bid capacity was disclosed of Rs.8020.79 lacs (Page 345). It is contended that all tenders are separate and there is no provision, for the respondent No.1 to consider the bid capacity submitted by the petitioners in other tenders. It is also contended that the State does not dispute that the figure as quoted of Rs.8020.79, lacs as the bid capacity of the petitioner was incorrect.
4.6. Insofar as the black listing is concerned, inviting our attention to the language of the GR dated 27.09.2018 (Page
272), it is contended that what is required is a person/company to have been included in the black list as against which, what was considered in the present case, was only an inter departmental proposal for black listing the petitioner and since it was an admitted position that the petitioner was not black listed nor the name of the petitioner was included in any such black list, the ground in that regard, according to him, was not tenable.
4.7. Insofar as the fourth ground is concerned, it is contended that there are no separate list of documents "A and B", which are required to be filed and those can only be related to Clause 4.4 which relates to the bid capacity, which documents according to him have been submitted, for which he invites our attention (Page 346). It is, therefore, contended that the rejection of the tender of the petitioner was clearly not justified and is required to be set aside.
KHUNTE WP-6216.23+3-J Tenders.odt 9/27 4.8. The learned Assistant Government Pleader submits, that the litigation history, as required under Clause 3.6.5 (Page
60) was not disclosed. He also submits that there was suppression of the correct bid capacity document and in spite of an opportunity being given consequent to the complaint by the respondent No.5, though someone from the side of the petitioner had come, however, no documents have been submitted (Para 11 Page 297). He, therefore, supports the impugned communication rejecting the tender of the petitioner.
4.9. Mr Mirza, learned counsel for respondent No.5 submits that the litigation information which was required to be supplied is indicated from Clause 2.12.1 which details what are the documents required to be submitted in envelope No.1, in which item No.18 relates to information regarding any litigation, current or during the last five years, in which the bidder is involved, the parties concerned and the disputed amount, for which information has to be given in form No.VIII. He therefore submits, that the nature of the litigation may be irrelevant and what is relevant is the disclosure of the information. He submits, that it was necessary for the petitioner to also disclose the information regarding the litigation as brought on record by the respondent No.5 (Page
342) and therefore the statement that there was no litigation (Page 321) was clearly false and misleading, which would disqualify the petitioner under Clause 3.6.6 (Page 61), which indicates that making of any misleading or false representation in the form statement, submitted would entail as such.
4.10. Insofar as the valuation of the bid is concerned, it is contended that for the purpose of determining the bid capacity as is required by Clause 4.4 (Page 58), two factors are KHUNTE WP-6216.23+3-J Tenders.odt 10/27 necessary: (A) The maximum value of civil engineering works executed in any one year executed during the last five years, taking into account the completed as well as works in progress and (B) value of the existing commitments and ongoing works to be completed during the next 300 days. Inviting our attention to the document in that regard, claimed to have been submitted by the petitioner (Page 346), it is contended that it does not satisfy the requirement of Clause 4.4 and specifically of the note appended thereto (Page 58) and even considering the reply of the State (Para 11 Page 297), there is no compliance in that regard.
4.11. Insofar as the question of the black listing is concerned, learned counsel fairly concedes that since the requirement in that regard as per the GR dated 27.09.2018 (Page 272) Clause 4.6.5 requires the inclusion of the name of the bidder in the black list, the said reason according to him would rightly not be justified.
4.12. Learned counsel relies upon Bharat Coking Coal Limited and Ors. vs. AMR Dev Prabha and Ors. , reported in (2020) 16 SCC 759, Silppi Constructions Contractors vs Union of India and Anr., reported in (2020) 16 SCC 489 and Afcons Infrastructure Limited vs Nagpur Metro Rail Corporation Limited and Anr., reported in (2016) 16 SCC 818, in support of his contentions.
4.13. Mr Naik, learned counsel for petitioners submits that since the bid capacity of the petitioner was not in question but the rejection was on account of difference in bid capacity, the document relating to satisfaction of the requirement of Clause 4.4 (Page 58) has not been placed on record and seeks a day's KHUNTE WP-6216.23+3-J Tenders.odt 11/27 time to demonstrate by placing documents on record that the requirement of Clause 4.4 stood complied.
4.14. List the matter on 10.01.2024.
4.15. Instead of Mr. Naik, learned Counsel for the petitioners, it would be appropriate that the learned AGP places on record the documents uploaded by the petitioner in envelope one, so that there may not be any controversy in that regard.
4.16. Interim order, if any to continue till then.
5. On 15/01/2024, we have heard the learned counsel for the respective parties extensively, for final disposal with their consent.
6. Since the legal issues involved in these petitions are identical, the facts differing in some dates, and since the learned counsel for the parties are agreeable to decide the matters in reference to the position as availing in Writ Petition No.6216 of 2023, we are deciding these matters by a common judgment.
7. The legal position for interference in tender matters, is spelt out by the hon'ble Apex Court in N.G. Projects Limited Vs. Vinod Kumar Jain, 2022(6) SCC 127, after considering Silppi Constructions Contractors (supra) and Afcons Infrastructure Limited (supra) as under :
12. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, this Court held that the KHUNTE WP-6216.23+3-J Tenders.odt 12/27 owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. ----.
13. This Court sounded a word of caution in another judgment reported as Silppi Constructions Contractors v.
Union of India, (2020) 16 SCC 489, wherein it was held that the courts must realise their limitations and the havoc which needless interference in commercial matters could cause. In contracts involving technical issues, the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above, the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. The courts must also not interfere where such interference would cause unnecessary loss to the public exchequer. -----.
14. In National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd., (2022) 6 SCC 401, this Court sounded a word of caution while entertaining the writ petition and/or granting stay which ultimately may delay the execution of the mega projects. ---.
15. In Uflex Ltd. v. State of T.N., (2022) 1 SCC 165], this Court stated that the enlarged role of the Government in economic activity and its corresponding ability to give economic "largesse" was the bedrock of creating what is commonly called the "tender jurisdiction". The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 KHUNTE WP-6216.23+3-J Tenders.odt 13/27 of the Constitution. ---.
16. In Galaxy Transport Agencies v. New J.K. Roadways, (2021) 16 SCC 808 : 2020 SCC OnLine SC 1035, a three- Judge Bench again reiterated that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. ---.
17. Therefore, the position of law with regard to the interpretation of terms of the contract is that the question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. Applying the aforesaid position of law to the present case, it has been the contention of Respondent 1 that the format for bank guarantee was not followed strictly by the State and that the relaxation given was not uniform, in that Respondent 1 was singled out. The said contention has found favour with the courts below. ---.
21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the writ court while exercising its jurisdiction under Article 226 of the Constitution of India.
22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e. not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set KHUNTE WP-6216.23+3-J Tenders.odt 14/27 of facts, different conclusions can be arrived at in a bona fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work.
7.1. In Tata Motors Limited Vs. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and others , Civil Appeal No.3897/2023, decided on 19/05/2023, [2023 Live Law (SC) 467], it has been held as under :
KHUNTE WP-6216.23+3-J Tenders.odt 15/27 "48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias.
However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. (See: Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489).
52. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is KHUNTE WP-6216.23+3-J Tenders.odt 16/27 pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679.
53. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.
54. As observed by this Court in Jagdish Mandal v.
KHUNTE WP-6216.23+3-J Tenders.odt 17/27 State of Orissa and Others, reported in (2007) 14 SCC 517, that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes."
7.2 The above position is also considered by a learned Division Bench of this Court in Waterfront Constructions Private Limited Vs. State of Maharashtra, 2023 SCC Online Bom 2032.
8. In so far as the issue of blacklisting is concerned, in view of what has been stated in para 12 of the order dated 08/01/2024, the issue stands concluded in favour of the petitioner as admittedly the name of the petitioner is not included in any blacklist as maintained by the respondents 1 to 4 and a proposed action of blacklisting would not debar the petitioner from bidding for a work.
9. In regard to the issue of disclosure of litigation, it would be material to note that the relevant clause in that regard is clause 3.6.5.
(page 60) of the tender, which reads as under:
KHUNTE WP-6216.23+3-J Tenders.odt 18/27 "3.6.5. Litigation History:- The tenderer shall provide accurate information on any litigation or arbitration resulting from contract complete or under execution by him over the last five years of consistence history of awards against the tenders or any partner of a joint venture may result in failure of the tender. Information to submitted in statement No.VIII." (page 60) 9.1. The requirement therefore is to submit the litigation history in respect of contracts which are complete or under execution. The respondent 5, has placed on record a list of litigation history, of the petitioners, which according to it has not been disclosed by the petitioners, which according to it, becomes a ground of rejection of the bid of the petitioners on account of non-fulfillment of the requirement in that regard. The list is at page 342, which for the sake of ready reference is reproduced as under:
LIST OF LITIGATION IN WHICH PETITIONER IS INVOLVED Sr. Case No. Name of Parties Name of Status No. Court
1. MCA M/s. R.K.Sancheti Engineers High Court Pending No.688/ and Contractors Vs. of Bombay 2022 Asstt.Provident Fund Bench at Commissioner Nagpur Nagpur
2. WP M/s. R.K.Sancheti Engineers High Court Disposed No.1946 and Contractors Nagpur Vs. of Bombay of /2020 State of Maharashtra and Bench at others Nagpur
3. WP M/s. R.K.Sancheti Engineers High Court Disposed KHUNTE WP-6216.23+3-J Tenders.odt 19/27 No.2448 and Contractors Nagpur of Bombay of /2021 Vs.State of Maharashtra and Bench at others Nagpur
4. WP M/s. R.K.Sancheti Nagpur High Court Pending No.5100 through Partner Vs. State of of Bombay /2023 Maharashtra and others Bench at Nagpur 9.2. It is contended by Mr.Naik, learned counsel for the petitioners, that litigation at serial Nos.2 & 3, namely Writ Petition No.1946/2020 and Writ Petition No.2448/2021, were pre-tender litigation, on account of rejection of the technical bids of the petitioners. This position has not been controverted by either the learned AGP or learned counsel Mr. Mirza for the respondent No.5. In so far as Writ Petition No.5100/2023 is concerned, he submits that the litigation was instituted by the petitioner on 09/08/2023, which was after submitting the bid, which was submitted on 07/08/2023 and therefore no question of it's disclosure arose, for which he relies upon copy of the status report from the official web site of this Court, which shows the filing date to be 09/08/2023 (pg.282-285). Writ Petition No.5100/2023, is also in relation to disqualification of the bid of the petitioners.
9.3. It would thus be apparent that these three litigation, i.e. Writ Petition No.1946/2020; Writ Petition No.2448/2021 and Writ Petition No.5100/2023 are all pre-bid litigation and are not resulting KHUNTE WP-6216.23+3-J Tenders.odt 20/27 from contract complete or under execution, as is the requirement of Clause 3.6.5. (page 60) of the tender and therefore non-disclosure of these litigation cannot be said to be in any way violating the requirement of clause 3.6.5.
9.4. In so far as MCA No.688/2022, is concerned, it is contended that the same is in respect of a claim raised by the Provident Fund Commissioner, against the petitioners and thus has no relevance to any contract completed or under execution and therefore would also not fall within the mischief of clause 3.6.5. (page 60) of the tender. However, no document has been placed on record in this regard, to indicate as to what is the nature of the claim, whether it is in respect of a contract complete or under execution by the petitioners. Even if MCA No.688/2022, could be said to be in respect of a contract completed, the duty to disclose such litigation, therefore would be spelt out from the language of term No.3.6.5. of the tender document and on account of non-disclosure of the same, rejection would be justified. If it was not in respect of any contract relatable to what is the requirement of clause 3.6.5, then it was necessary for the petitioners to demonstrate this. It was therefore necessary for the petitioners to disclose what was the nature of the litigation, which was the subject matter of MCA No.688/2022, so as to claim, compliance with the requirement of term No.3.6.5. of the tender, leaving the KHUNTE WP-6216.23+3-J Tenders.odt 21/27 tendering authority to determine whether the same was relevant or not. This however, admittedly has not been done, even as per the petitioners, as is reflected from the statement of the petitioners regarding the litigation history (page 321), wherein the litigation history is stated to be NIL. The purpose of placing the litigation history on record, is to enable the tendering authority, to take a decision as to the capacity and intention of the tenderer, to execute and complete the project, within the time frame, stipulated. Merely because several litigation are pending between a tenderer and the tendering authority, that by itself cannot be a ground to reject the bid, however if such litigation history discloses or reflects upon the capacity and intention of the tenderer to execute and complete the project, then that would definitely be a factor to be taken into consideration for not accepting the offer of the tenderer, as that would adversely affect the very completion of the project, for which reason the litigation history has to be disclosed. It would also be the material to note that in the information to be submitted in Statement VIII, which relates to litigation history in which the bidder is involved, there is a remark column requiring showing of the present status of the litigation. There is also column No.3, which requires the "cause of dispute" to be stated therein. This is for the very reason, that the tendering authority could identify whether the litigation is of any relevance or not for the purpose of determining the capacity and KHUNTE WP-6216.23+3-J Tenders.odt 22/27 intent of the bidder, to execute the tender work. It was, therefore, open for the petitioners, to have disclosed the pendency of MCA 688/2022 and also in the "cause of dispute" column in Statement VIII to state what was the nature of the dispute. The reason why this has not been done is stated to be that the dispute being against the Provident Fund Commissioner would have no relevance. However, the very purpose of column No.3 in Statement VIII (pg.83), "cause of dispute", is to indicate this position after disclosure. Therefore, what is material is the disclosure and not what the petitioners feel is the relevance or non-relevance of the litigation.
10. It is then contended by Mr. Naik, learned counsel for the petitioners, that the ground for rejection of the bid, on account of different balance of work, as indicated in the tenders submitted for the works at Pusad, Umarkhed and Pandharkawda, is not justified for the reason that the works at all these places were different works, independent of each other and therefore it was not permissible for the respondents 1 to 4, to consider documents, which had no nexus or relation with the work, tendered. It is also contended that for consideration of the bids for the works at Pusad, the correct bid capacity of Rs.8020.79 lakhs was rightly disclosed, which was not being disputed by the respondents 1 to 4, and in case it was found that there was incorrect bid capacity disclosed in the bids for the KHUNTE WP-6216.23+3-J Tenders.odt 23/27 works at Umerkhed and Pandharkawda, the same would entail rejection of the bids for the works at Umerkhed and Pandharkawda and not the bids as submitted for the works at Pusad.
10.1. Mr.Mirza, learned Counsel for the respondent No.5 and Mr.Joshi learned AGP for the respondents-State, on the contrary, contends that the purpose for considering the bid capacity for the works at different places, was to ascertain, the correctness of the bid capacity stated by the tenderer, in its bid, and in case it was found that the statement regarding the bid capacity was incorrect, which was so in the instant case, that was ground justifiable for its rejection.
10.2. In this regard, considering that the tender for each work was a separate and independent tender, which was required to be considered and evaluated on the basis of the requirements, of each such tender, on a query being made as to which clause of the tender document permitted the respondents 1 to 4, to consider the bid capacity stated by the tenderer for different works, Mr.F.T.Mirza, learned Counsel for the respondent No.5 and Mr.A.M.Joshi, learned AGP, have been unable to point out any such clause/condition in the tender document. They also do not dispute the proposition that each tender has to be considered and evaluated on the basis of the terms and conditions as contained in the tender document. Thus, in absence of any such clause in the tender document, the bid of the petitioners KHUNTE WP-6216.23+3-J Tenders.odt 24/27 could not have been rejected on account of any such claimed difference vis-a-vis the bid capacity in the various bids submitted by the petitioners, for various works, all of which were distinct and separate works. Mr.A.A.Naik, learned Counsel for the petitioners, is correct in his submission that since the bid capacity of Rs.8020.79 lakhs, as disclosed in the bid for the works at Pusad, was not disputed by the respondents, the bid of the petitioners for the works at Pusad could not be rejected on that ground. May be the bids submitted by the petitioners for the works at Umerkhed and Pandharkawda, could be rejected on this count. We therefore find that this reason for rejection of the bid of the petitioners does not appear to be justified.
11. Much arguments have been advanced as to whether the requirement of term No.4.4, of the tender relating to bid capacity and specifically the documents required to determine the factors A & therein, in consonance with Note 1 appended thereunder, have been satisfied. Mr. Naik, learned Counsel for the petitioners, contends that all the requirements in this regard stood satisfied. For this he invites our attention to the documents placed on record by the Mr.Joshi, learned AGP, vide pursis dated 09/01/2024, and specifically the document at page 99 therein to contend that the requirement of submitting the required information as indicated in statement No.V (pg.79) stood satisfied as this document, contained all such KHUNTE WP-6216.23+3-J Tenders.odt 25/27 information. It is also contended that the information as required by Statement VII (pg.81) also stood supplied for which he invites our attention to page 127 of the documents as filed by the learned AGP along with his pursis. It is therefore contended that all necessary material for the determination of factors A & B, stood satisfied and therefore the rejection on this ground was not justified.
11.1. Mr.F. T. Mirza, learned Counsel for respondent No.5, while controverting this submission, submits that the statement at pg. 99 along with the pursis, filed by the learned AGP, indicates that it is titled as Form III. Even if the contention of the petitioners is accepted that the information as contained therein is what was required by statement V, then that would indicate that the information as required in Statement III, was missing, on which ground also the bid of the petitioners being incomplete, rejection would be justified.
12. The purpose of soliciting information in various formats, is to enable the tendering authority, to have such information available for ease of determining the capacity of the tenderer to execute the work. It is open and permissible for the tendering authority, to devise Forms/Formats/ Statements, in order to solicit information from the tenderer, which according to the tendering authority, would be necessary to determine the bid capacity of the tenderer. The tenderer cannot object to such a device and has necessarily to supply all such KHUNTE WP-6216.23+3-J Tenders.odt 26/27 information as is solicited in the various Forms/Formats/Statements as asked for in the tender document and non-supply of such information, would clearly entitle the tendering authority to reject the offer. It is equally not permissible for the tenderer to say that the information supplied in one Form/Statement, according to him, is sufficient for determining the factors A & B, which relate to the bid capacity of the tenderer, for it is the satisfaction of the tendering authority, according to its own methodology and device, to arrive at such satisfaction.
13. Thus even if the contention of Mr. Naik, learned Counsel for the petitioners is accepted that the information as required by Statement V of the tender is contained in Form III (pg.99 of the pursis filed by the learned AGP), then Statement III, would be missing thereby indicating that the information required in Statement III, was not supplied by the petitioners, making its bid/offer incomplete.
14. The Court in its jurisdiction of judicial review, does not sit in appeal, over the decision of the tendering authority, as is indicated by a catena of decisions of the Hon'ble Supreme Court and thus cannot replace its opinion in place of the opinion of the tendering authority, as it is the tendering authority who has drafted and prepared the tender, who is the best judge, to determine the necessity of any information solicited in the various Statements/Forms, for the purpose to arrive at a decision as to the capability of the tenderer to KHUNTE WP-6216.23+3-J Tenders.odt 27/27 execute the work in question.
15. That being the position of law, we do not see any infirmity in the actions of the tendering authority in rejecting the bid of the petitioners, in view of the above discussion. The petitions are therefore dismissed.
16. Rule is discharged. No order as to costs.
(SMT.M.S.JAWALKAR, J) (A.G.GHAROTE, J) Signed by: Mr. G.S. Khunte Designation: PS To Honourable Judge Date: 22/01/2024 16:55:03KHUNTE