Bombay High Court
Shapoorji Pallonji And Co. Pvt. Ltd. And ... vs State Of Maharashtra And 4 Ors on 9 May, 2022
Author: A.A.Sayed
Bench: A.A. Sayed, S.G.Dige
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WPL 17042 of 2021 - 10-05-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) No.17042 OF 2021
...
Shapoorji Pallonji and Co.
Pvt. Ltd. and Anr. ...Petitioners
Vs.
State of Maharashtra and Ors. ...Respondents
...
Mr. Janak Dwarkadas, Senior Counsel a/w. Mr. Venkatesh Dhond
a/w. Mr. Rohan Kelkar a/w. Shilpi Jain a/w. Ms. Dhanyashree
Shah a/w. Mr. Manas Kotak a/w. Ms. Huzan Bhumgara i/b. Desai
& Diwanji Advocates for the Petitioners.
Mr. Amit Shastri, AGP for Respondent No.1-State
Mr. Aspi Chinoy, Senior Counsel, a/w. Joel Carlos a/w. Vandana Mahadik
for Respondent Nos 2 to 4-Corporation.
Mr.Akshay Doctor a/w Zain-es-Najmi for Respondent No.5.
...
CORAM : A.A. SAYED &
S.G.DIGE, JJ.
DATED : 9 MAY 2022
(IN CHAMBER AT 11 A.M.)
ORDER:(Per A.A.Sayed,J.) 1 The above Writ Petition has been filed seeking the following reliefs:
"(a) This Hon'ble court be pleased to issue a Writ of Certiorari or any other appropriate writ, order of direction calling for the records relating to the present E-Tender No.WS-537 and after considering the Uday.P.Kambli 1/43 2/43 WPL 17042 of 2021 - 10-05-2022.doc legality, validity and propriety thereof be pleased to quash and set aside the decision of the Respondent Nos.2 and 3 to terminate the Petitioners' bid and disqualify the Petitioners from the aforesaid E-
Tender as contained in the Letters dated 13 th July, 2021 and 28th July, 2021;
(b) This Hon'ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ directing the Respondents, including their agents, officers, assigns or any other person acting through them, to treat the documents provided by the Petitioners with respect to the Technical Eligibility Criteria as more particularly contained in Clause 3 of Section 2 of the E-Tender Document as being adequate and sufficient to comply with the said criteria;
(c) This Hon'ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ directing the Respondents, including their agents, officers, assigns or any other person acting through them, to award the Project works forming part of E-Tender No.WS-537 in favour of the Joint Venture comprising of Petitioner No.1 and Petitioner No.2 (being admittedly the L-1 bidder);"
2. Petitioner No.1 is stated to be a flagship company of Shapoorji Pallonji Group. Petitioner No.2 is a registered Civil Contractor of the Municipal Corporation of Greater Mumbai. Petitioner Nos.1 and 2 formed a Joint Venture Undertaking sometime in November, 2020 by the name of 'Shapoorji Pallonji-Konark JV' (Joint Venture) to participate in and execute the works relating to the subject e-Tender floated by Respondent- Uday.P.Kambli 2/43 3/43
WPL 17042 of 2021 - 10-05-2022.doc Corporation. The Tender involved designing, providing, constructing and commissioning of a modernized and fully automated package/modular Sewage Treatment Plants based on MBR technology along Oshiwara/Walbhat river on Design Build Operate basis (DBO). In addition, the scope of the Tender also involved Operation and Maintenance of the Plants for a period of 15 years as well as providing and laying of sewer network, provision of Interceptors for diversion of DWF, construction of service road, and roadside drains on either banks of Oshiwara/Walbhat River for interception and diversion works of sewage (hereinafter referred to as "the Project").
3. Respondent No.1 is the State Government. Respondent No.2 is the Municipal Corporation of Greater Mumbai. Respondent No.3 is the Dy. Chief Engineer (Sewage Works Department) who oversees the execution of various sewage treatment works. Respondent No.4 is the Commissioner of the Respondent No. 2-Corporation. Respondent No.5-Trenchless Engineering Services Pvt. Ltd. (hereinafter referred to as 'Respondent No.5- Trenchless') is the Technical associate/partner appointed by the Joint Venture in relation to part of the project. It is stated that the Respondent No. 5-Trenchless possesses requisite knowledge and experience in relation to an important aspect of the Tender i.e. laying of pipes by use of Horizontal Uday.P.Kambli 3/43 4/43 WPL 17042 of 2021 - 10-05-2022.doc Directional Drilling (HDD) to bore trough rock formations having strength in excess of 5 Moh and crushing value of more than 250 Mpa.
4. The Respondent-Corporation terminated the bid of the Petitioners and disqualified the Petitioners from the e-Tender vide the impugned letter dated 13 July 2021 and reiterated in the impugned letter dated 28 July 2021, on the ground that the Petitioners had not submitted necessary documents to establish the technical experience of Respondent No. 5- Trenchless in terms of the Tender, which is the subject matter of challenge in this Petition. The Petitioners claim that the disqualification and termination to be illegal, wrongful, arbitrary and malafide. The Petitioners also seek a writ of mandamus to award the contract to their Joint Venture (JV).
5. In or around April 2020, the Respondent-Corporation issued the e-Tender inviting bids for the Project. Under Section 1 of the Tender Document, the bidding process was to comprise of a 3-stage system, whereby necessary documents required for each stage of the Tender were to be uploaded online in Packets A.B and C. These packets were to be opened on the dates more particularly specified in Section 1 of the Tender Document read with Corrigenda issued from time to time. Section 1 further provides that Packet-C would be opened only if Packets A & B satisfy all E- Uday.P.Kambli 4/43 5/43
WPL 17042 of 2021 - 10-05-2022.doc Tender Document requirements. The 'Eligibility Criteria' is set out in Section 2 of Tender document. The `Eligibility Criteria' is bifurcated in four broad categories, namely, (I) Technical Capacity (Clause 1), (II) Financial Capacity (Clause 2), (III) Technical Experience (Clause 3) (IV) Bid Capacity (Clause 4). Section 6 of the Tender Document, inter alia, provides for meaning of "non-curable defects". The "non-curable defects" are extracted hereunder:
"i. Inadequate submission of EMD/ASD Amount;
ii. Inadequacy of technical and financial capacity with respect to the eligibility criteria;
iii. Wrong calculation of bid capacity.
iv. No proper submission of experience certificates and other documents, etc."
6. By Corrigendum-12 issued by the Respondent-Corporation, the 'Technical Experience' eligibility criteria specified in Clause 3 of Section 2 of the Tender Document was amended. The revised 'Technical Experience' eligibility criteria required for Project reads as under:
"For assessing the technical capacity of bidder as per Clause 1. (II) similar work shall mean the completed works of laying Gravity/rising main in sewage Network/SW drain network.
AND The bidder shall have experience of providing and laying Sewer/Water/Petroleum/Gas line/Telecommunication cables/High Power Cables by HDD (Horizontal Directional Drilling) in extremely hard Rock having hardness factor not less than 5 (Mohs) and 250 Mpa for the cumulative minimum length of 150 Uday.P.Kambli 5/43 6/43 WPL 17042 of 2021 - 10-05-2022.doc RM in completed or on-going projects in MCGM/Semi Government/Government and Public Sector Organizations during last seven (7) years.
OR They should submit memorandum of understanding (MOU) with a firm and the firm should have laying experience as per the requirement given above either in his own capacity or as an official approved Subcontractor. The tenderer has to submit all credentials of the firm with whom they `are entering with MOU.
AND The bidder or technology provider shall have experience of carrying out excavation by Pulse Plasma technology or any other similar technology. The technology for rock excavation shall have zero shock wave with permissible sound level and vibration velocity less than 1 mm/sec. The technology shall be certified by PESO (Petroleum & Explosive Safety Organisation, India) as a non-explosive process.
(The contractor has to quote considering the site condition and no extra/separate payment will be made for using Pulse Plasma or any other similar technology for excavation in rock.)"
7. The Petitioner Nos.1 & 2 being desirous of participating in the Tender, formed a Joint Venture and entered into Joint Venture Agreement on 9-11-2020. Since the Petitioner Nos.1 & 2 did not by themselves possess one aspect of the required technical eligibility criteria with respect to use HDD for excavating hard rock formations having a hardness factor of not less than 5 Mohs and 250 Mpa, they appointed the Respondent No.5- Trenchless to act as a technology provider to the Joint Venture with respect to the said HDD work required to be undertaken as part of the Project and accordingly entered into Memorandum of Understanding (MoU) with Uday.P.Kambli 6/43 7/43 WPL 17042 of 2021 - 10-05-2022.doc Respondent No.5-Trenchless on 13-11-2020. On 16-02-2021, the Joint Venture submitted its bid on the on-line portal of the Respondent- Corporation for the e-Tender. As part of the bid, the Petitioners also submitted Packets A,B & C. The Joint Venture, inter alia, submitted documents reflecting the expertise of Respondent No.5-Trenchless in HDD including MoU dated 13-11-2020 with Respondent No.5-Trenchless. In terms of the Tender document, the three Packets were to be opened in accordance with the timelines as provided in Section 1 of the Tender Document.
8. On 09-03-2021, the Respondent No.3-Dy. Chief Engineer addressed a letter to the Petitioners inter alia, informing them that pursuant to the submission of their bid, e-Packets A and B had been opened by the Respondent-Corporation on 17-02-2021 and that pursuant to the scrutiny of documents, there were certain shortfalls and called upon the Petitioners to cure the said shortfalls in the bid by providing the necessary documents. One of the main shortfall identified by the Respondent-Corporation at Item No. 4 in the said letter dated 09.03.2021, was that the condition of Technical Experience in Clause 3 of Section 2 of the Tender document required the submission of an Experience Certificate from employer and that the same is not submitted. The said letter dated 09.03.2021 is hereinafter referred to as 'the shortfall letter dated 09.03.2021'.
Uday.P.Kambli 7/43 8/43
WPL 17042 of 2021 - 10-05-2022.doc
9. By letter dated 11-03-2021, the Petitioners responded to the shortfall letter dated 09-03-2021. In respect of the shortfall identified at Item No.4 of the said shortfall letter dated 09-03-2021, the Joint Venture provided a copy of the Certificate dated 12-03-2021 issued by one Advance BFEW Consortium in favour of Respondent No.5-Trenchless, inter alia, certifying that Respondent No.5-Trenchless had successfully undertaken HDD works through rock formations having hardness in excess of 5 (Mohs) for Hindustan Petroleum Corporation Ltd.'s project (HPCL Project). According to the Petitioners, Advance BFEW Consortium had been appointed as the main contractor and Advance BFEW Consortium in turn appointed Respondent No.5-Trenchless as the sub-contractor to undertake the necessary HDD related works for the HPCL Project. The Petitioners claim that the Advance BFEW Consortium Certificate was sufficient proof of compliance with the requirement of Clause 3 of Section 2. On 31-03-2021, the Respondent-Corporation addressed an e-mail to the Petitioners, inter alia, stating that the Technical Advisory Committee (TAC) had been formed on 14.11.2019 and called upon the Petitioners to make power-point presentation of the technical proposal submitted by them in respect of the Project. It was further informed that a meeting of the officials forming part of the TAC and officials of Respondent-Corporation was Uday.P.Kambli 8/43 9/43 WPL 17042 of 2021 - 10-05-2022.doc scheduled to be held on 01-04-2021, where the technical proposals received for the Project would be evaluated and the presentation of the Petitioners would be useful to clarify and evaluate technical aspects of the Project. According to the Petitioners, prior to opening Packet-C, the representatives of the Joint Venture were orally informed by the officials of Respondent-Corporation that they were expected to execute another Undertaking (apart from the undertaking that was submitted earlier), inter alia, specifying that the Joint Venture would adhere to the tender conditions relating to the experience required for HDD works and would submit all necessary documents and accordingly the Joint Venture executed the Undertaking dated 5-04-2021.
10. On 03-06-2021, the Respondent-Corporation addressed an email/letter to the Petitioner No.1, inter alia, intimating that opening of the final Packet of e-Tender Bid i.e. Packet-C would take place on 04-06-2021. On 09-06-2021, after opening of the Packet-C, the Respondent No.3 addressed a letter to the Petitioners, inter alia, informing them that Packet- C had been opened and the same was under detailed scrutiny and called upon the Petitioners to provide interalia detailed cost break-ups and justification of the individual items quoted pertaining to the Project in terms of Annexure-6 of Corrigendum-16. On 11-06-2021, the Respondent- Uday.P.Kambli 9/43 10/43
WPL 17042 of 2021 - 10-05-2022.doc Corporation addressed an email to the Petitioners, inter alia, stating that Packet-C was opened on 04.06.2021 and their Joint Venture had been declared as the lowest bidder (L-1 bidder) in the Tender and called upon the Joint Venture to submit rate analysis for the items required for the Project in the format annexed at Annexure "D" of the Tender Document alongwith justification for the quoted rates within 3 days. According to the Petitioners, from the said letter it was clearly evident that the Respondent-Corporation had accepted the Petitioners' bid/offer as compliant. On 15-06-2021, the Joint Venture responded to the email and submitted the necessary rate analysis in the prescribed format. According to the Petitioners, thereafter, a telephonic communication was received from the officials of the Respondent Nos.2 & 3 and for the first time voiced certain reservations with regard Advance BFEW Consortium Certificate (submitted to the Respondent-Corporation by letter dated 11-03-2021 in response to shortfall letter dated 09.03.2021), which had been provided by the Petitioners in order to comply with the Technical Experience eligibility criteria. According to the Petitioners, the reservation voiced to them was that the said Certificate had not been issued by a Government Undertaking/Organization. In view thereof, the Joint Venture was called upon to submit additional certification issued in favour of Respondent No.5- Trenchless. According to the Petitioners, on 22-06-2021, the Joint Venture Uday.P.Kambli 10/43 11/43 WPL 17042 of 2021 - 10-05-2022.doc by their email forwarded additional Certificate i.e. Certificate dated 30-10- 2020 of Bharat Petroleum Corporation Ltd. (BPCL Project Certificate) issued by Engineers India Ltd., a Government of India Undertaking, which was the Project Management Consultant (PMC) in respect of the BPCL Project, where also, the Respondent No.5-Trenchless had successfully undertaken and completed HDD-related works. The Petitioners assert that in the aforesaid email dated 22-06-2021, it was categorically stated that-
(i) the work done in respect of the HPCL Project and the Advance BFEW Consortium Certificate issued in respect thereof fulfilled the conditions of the e-Tender;
(ii) It was only because Respondent-Corporation had requested for a certificate issued by a government undertaking, the Joint Venture was providing the additional work done certificate for BPCL.
(iii) Respondent-Corporation was also informed that Respondent No.5-Trenchless was already in discussion with HPCL (through Advance BFEW Consortium) to obtain a certificate from HPCL with respect to the HDD work undertaken by Respondent No.5-Trenchless in respect of the HPCL Project.
11. On 24-06-2021, the Petitioners submitted the following documents to the Respondent-Corporation:
i. Completion Certificate dated 13th May 2020 issued by HPCL certifying that the HDD works undertaken in respect of the HPCL Project were satisfactorily completed, and Uday.P.Kambli 11/43 12/43 WPL 17042 of 2021 - 10-05-2022.doc ii. Letter of Intent dated 17th February 2017 issued by HPCL to Advance BFEW Consortium.
According to the Petitioners, the Letter of Intent was submitted to show that the work certified to be completed by Respondent No.5-Trenchless in the Advance BFEW Consortium Certificate was in respect of the HPCL Project.
12. On 26-06-2021, the Petitioners addressed an email to the Respondent-Corporation, inter alia, explaining -
i. With respect to the HPCL project, Advance BFEW Consortium had been appointed as the main contractor. In the course of execution of the project works, Advance BFEW Consortium encountered hard rock in the project area and for this purpose, shortlisted Respondent No.5-Trenchless on account of their expertise in dealing with HDD works through hard rock formations.
ii. That the HDD-works through these hard rock formations had been carried out by Respondent No.5-Trenchless as certified by Advance BFEW Consortium. In turn, HPCL too has confirmed the successful completion of the HDD works.
iii. With respect to the BPCL Project, it was clarified that Respondent No.5-Trenchless was the main contractor and Engineers India Ltd was the Project Management Consultant (PMC).
Uday.P.Kambli 12/43 13/43
WPL 17042 of 2021 - 10-05-2022.doc
13. On 06-07-2021, the Petitioner No.1 addressed an email to BPCL with a copy marked to Respondent No.3-Dy. Chief Engineer, inter alia calling upon BPCL to confirm the BPCL Project Certificate issued by Engineers India Ltd. BPCL by their email dated 07-07-2021, addressed inter alia to the Respondent No. 3-Dy. Chief Engineer certified that the contents of the BPCL Project Certificate issued by Engineers India Ltd. was true, correct and genuine and also stating that the HDD work had been undertaken by Respondent No.5-Trenchless in a professional manner with a technical approach through a rock hardness factor in excess of 5 Mohs and crushing value of more than 250 Mpa.
14. According to the Petitioners, they were shocked when they received the impugned letter/email dated 13-07-2021 (impugned termination letter) on email from the Respondent No.3- Dy. Chief Engineer, inter alia, intimating them that the Petitioners had failed to submit the requisite documents necessary to fulfill the mandatory tender condition and therefore were disqualified from the e-Tender Project and that 10% of the Security Deposit has been forfeited for the non-compliance.
15. On 14-07-2021, the Petitioners replied to the termination letter, inter alia, denying the contents of the termination letter. In the said letter it was Uday.P.Kambli 13/43 14/43 WPL 17042 of 2021 - 10-05-2022.doc inter alia stated - (i) pursuant to the opening of Packets A and B, the shortfall letter 09.03.2021 had been addressed to the Joint Venture and the Joint Venture had replied to the same by providing the necessary documents, (ii) the Undertaking executed by the Joint Venture was pursuant to oral/telephonic requests and the same were submitted despite there being no requirement to do so under the Tender Document, (iii) the opening of Packet C thereafter and the declaration of the Joint Venture as the L-1 bidder meant that the Joint Venture had qualified, by providing the necessary documents, (iv) that despite there being no necessity of providing additional document from the governmental agencies with respect to Respondent No.5-Trenchless' experience in HDD work and the fact that the documents were already submitted (relating to HPCL Project) was sufficient compliance with the eligibility criteria under the Tender Document and that the Petitioners had submitted additional documents in the best interest of the Project and to ensure transparency in documentation, (v) attention of the Respondent No.3-Dy. Chief Engineer was drawn to the contents of the email dated 26-06-2021, wherein detailed explanation relating to Respondent No.5-Trenchless' role in the HPCL and BPCL projects was highlighted, (vi) it was also pointed out that the BPCL has itself addressed an email that was marked to Respondent No.3-Dy. Chief Engineer inter alia certifying that the contents of the BPCL Project Uday.P.Kambli 14/43 15/43 WPL 17042 of 2021 - 10-05-2022.doc Certificate were true, correct and genuine, (vii) that the Respondent No.3- Dy. Chief Engineer was therefore called upon to recall the termination letter.
16. By the impugned letter dated 28-07-2021 addressed to the Petitioners, the Respondent No.3-Dy. Chief Engineer reiterated that the Petitioners had failed to comply with the shortfall letter dated 09-03-2021 and inter alia stated that - (i) the Technical Experience certificate eligibility criteria laid down in Clause 3 of Section 2 of the Tender Document was not met by the Petitioners and the Petitioners had failed to rectify the shortfall identified in the shortfall letter dated 09-03-2021 (ii) Packet-C had been opened on the basis of the undertaking provided by the Joint Venture and that the Joint Venture failed to submit the necessary documents to fulfill the tender conditions (iii) the certificates submitted were neither issued by HPCL or BPCL and that the BPCL Project Certificate in fact did not form the part of Packet-B (iv) The work experience certificates are verified only if the same are submitted during the tendering process and if they comply with tender conditions.
17. An Affidavit-in-Reply has been filed by the Respondent No. 3- Shri Bhagyawant V. Late, Deputy Chief Engineer (Storm Water Drains), Western Suburbs, on behalf of the Respondent-Corporation. The Uday.P.Kambli 15/43 16/43 WPL 17042 of 2021 - 10-05-2022.doc averments/assertions made in the Affidavit-in-Reply, interalia, are - the Petitioners are in effect challenging the technical eligibility criteria of the Tender Document. It is settled position of law that the bidder who participated in the e-Tender was precluded from challenging the e-Tender conditions. The Petitioners are seeking relaxation in the Technical Eligibility criteria, which is not permissible. The Petitioners have not impleaded two other bidders viz.Eagle Mahalasa JV and Skyway and Speco JV, who have fulfilled the qualification norms. The Petitioners were disqualified in the technical evaluation and the aforesaid two bidders have fulfilled the same and the said bidders ought to have been joined as party-Respondents and in particular L-2 bidder ought to have been joined as party-Respondent. The Petitioners have a remedy to approach the Internal Grievance Redressal Mechanism (Internal Grievance Cell) formed by the Respondent- Corporation for redressal of grievance wherein any bidder or prospective bidder aggrieved by any decision can apply for review of the decision of responsiveness in Packets A,B & C within a period of 7 days or such other period as may be specified in the Bid Document. The Petitioners did not meet the technical criteria and were in fact fully aware of this deficiency in their Techno Commercial Bid. Though the Respondent Nos.2 and 4 would have been justified in rejecting the said technical bid at the outset, however, with a view to act with utmost fairness and transparency and in the interest Uday.P.Kambli 16/43 17/43 WPL 17042 of 2021 - 10-05-2022.doc of having more competitive bidding, the Respondent Nos.2 to 4 have given ample time of about 4 months (from 09.03.2021 to 12.07.2021) to the Petitioners to submit the requisite documents to prove that they meet the eligibility conditions. However, despite ample opportunities to submit the requisite documents, the Petitioners failed to fulfill the eligibility criteria and the Respondent Nos.2 to 4 were justified to treat the Petitioners' bid as non- responsive. The Respondents had issued the shortfall letter dated 09-03- 2021 to the Petitioners for non-compliance of the mandatory tender condition. However, the Petitioners failed to submit the requisite documents, and the documents submitted by the Petitioners for the HDD work did not comply with the mandatory tender condition under Clause 3 of Section 2 and Technical Experience mentioned in Corrigendum XII & XIII. The tender conditions clearly stipulated that the bidder should have completed the HDD work in MCGM/Semi-Government/Government/Public Sector Organization. The Petitioners were well aware that the HDD work experience certificate submitted by them did not adhere to the tender conditions and hence the Petitioners submitted an Undertaking requesting to open Packet-C and declaring that the Petitioners will adhere to tender conditions for experience of HDD work and will submit all the requisite documents in due course. The Petitioners, however, again submitted a different work experience certificate for HDD method from M/s.Engineers India Ltd. with an attempt to satisfy the Uday.P.Kambli 17/43 18/43 WPL 17042 of 2021 - 10-05-2022.doc requirements of the tender. The Certificate at Exhibit-O to the Petition should have been issued by BPCL and the specifications for HDD work as per the tender conditions are not mentioned in the certificate submitted by the Petitioners. Therefore, both the work experience certificates for HDD work submitted by the Petitioners were not as per requirments of the tender conditions and therefore the Respondents had no other option but to disqualify the Petitioners. The Petitioners were very well aware of the shortfall in their bid and had accordingly submitted their Undertaking dated 05-04-2021 and despite giving adequate time of about 4 months (from 09-03-2021 to 13-07-2021), the Petitioners failed to submit the requisite documents. Though the Petitioners allege that the HPCL had certified successful completion of the HDD work, the HPCL had issued the work completion certificate on the request of M/s.Advance BFEW Consortium as its main contractor and there is no mention of Respondent No.5-Trenchless in the said Certificate and the technical specification of HDD work for hard rock having minimum hardness of 5 Mohs (Mohs Hardness Scale) and strength of 250 Mpa (Mega Pascal) are not mentioned in the completion certificate issued by HPCL to M/s.Advance BFEW Consortium. M/s. Engineers India Ltd. is a PMC for BPCL Project as mentioned by the Petitioners and till date the Petitioners have not submitted the work completion certificate for HDD works with technical specifications from Uday.P.Kambli 18/43 19/43 WPL 17042 of 2021 - 10-05-2022.doc BPCL in favour of Respondent No.5 as its main contractor or officially approved sub-contractor. In any event, the said work completion certificate submitted by the Petitioners is not acceptable as it is not submitted as part of the tender process and does not comply the tender conditions. The shortfall letter dated 09.03.2021 was issued for lapses in the submission of documents in Packet A & B, which is non-curable defect as per tender conditions. Non submission of proper experience certificate is non-curable defect as set out in Section 6 of the E-Tender Document. The Tender is in larger public interest and National Green Tribunal (NGT) had issued notice to the Respondents to take measures for curbing pollution of rivers/water bodies/lakes in the jurisdiction of Respondents and relief granted to the Petitioners would result in delaying a project of vital public interest, which is necessary for protection of environment and will result in a huge cost and time overrun and harm the interest of the residents of Mumbai.
18. An Affidavit-in-Rejoinder dated 07-09-2021 has been filed by the Petitioners. The Petitioners have annexed as 'Exhibit A' to the Affidavit-in- Rejoinder, a copy of Letter of Acceptance dated 01.02.2019 issued by BPCL directly to the Respondent No. 5-Trenchless for the same work in respect of which Engineers India Ltd. (PMC of BPCL) had issued the Completion Certificate to Respondent No. 5-Trenchless. According to the Uday.P.Kambli 19/43 20/43 WPL 17042 of 2021 - 10-05-2022.doc Petitioners, this document puts and end to the controversy. The Petitioners have annexed at Exhibit G and H to the Affidavit-in-Rejoinder, copy of minutes of the Respondent-Corporation dated 03-06-2021 alongwith the copy of the M/s TUSLP Consultants Scrutiny Report dated 12-05-2021, which were received in response to an RTI application. The minutes dated 03.06.2021 is signed by several officers of the Respondent-Corporation including the Respondent No.3-Dy. Chief Engineer. In the minutes, it is recorded that M/s.TUSPL as an independent consultant had scrutinized all documents uploaded by three bidders in Packets A & B and the three bidders were found to be "responsive" as per the detailed scrutiny Report of M/s.TUSPL. The said minutes records that the performance certificates submitted by the tenderers are verified by respective authorities and the Technical Advisory (TAC) formed for the said project have reviewed Treatment Process Calculations, Work Methodology, related drawings, respective submissions, etc. on 01-04-2021 through Video Conferencing, which was attended by all the bidders, TAC Members, S.O., S.P. & SWD officials and Consultant M/s.TUSPL. Exhibit "G" which is the Report of consultant of the Project, M/s.TUSPL, is also signed by Officers of the Respondent-Corporation including the Respondent No. 3-Dy Chief Engineer, who is the deponent of Affidavit-in-Reply on behalf of the Respondent-Corporation.
Uday.P.Kambli 20/43 21/43
WPL 17042 of 2021 - 10-05-2022.doc 19 The Petitioners have also annexed to the Affidavit-in-Rejoinder, copies of letters dated 23rd June, 2021 and 20th July, 2021 addresed to L-2 Bidder, to show that the Respondent-Corporation had refunded the EMD to the L-2 Bidder.
20. An Additional Affidavit dated 28-09-2021 is filed by Respondent No. 3-Dy.Chief Engineer, placing on record the Minutes dated 30-06-2021, wherein it is stated that the Petitioners had neglected the follow up done by office staff and failed to submit the requisite HDD experience certificate on time and the bid of the Petitioners be treated as non-responsive and the Petitioners be disqualified. An Additional Affidavit dated 29.09.2021 has also been filed by the Petitioners and a further Additional Affidavit dated 4- 10-2021 has been filed by the Respondent-Corporation.
21. We have heard the learned Senior Counsel for the Petitioners and the learned Senior Counsel for the Respondent-Corporation, who have taken us through the contents of Petition, the Affidavits, correspondence and other Exhibits. Learned Senior Counsel for the Petitioner has relied upon the following judgments:
1. M/s. Konark Structural Engineers Pvt. Ltd. Vs Deputy Chief Engineer (SWD) and Anr. (2018) SCC Online Bom 2559;Uday.P.Kambli 21/43 22/43
WPL 17042 of 2021 - 10-05-2022.doc
2. State of Kerala vs Zoom Developers Private Limited, (2009) 4 SCC 563;
3. Balsara Home Products Limited vs Director General, Directorate of General Suppliers & Transport, (2006) SCC Online Del 34;
4. Godhra Electricity vs State of Gujarat, (1975) 1 SCC 199;
5. Acer India vs Central Bank,(2018) SCC Online Bom 1459;
6. Reliance Energy vs Maharashtra State Road Development Corporation, (2007) 8 SCC 1;
7. Bharati Axa General Insurance Company vs Priay Paul, (2020) 12 SCC 167;
8. Jayrajbhai Jayantibhai vs Anilbhai Nathubhai, (2006) 8 SCC 200;
9. Tata Cellular vs Union of India, (1994) 6 SCC 651;
10. Lal Somnath Singh vs Ambika Prasad Dube, (1949) SCC Online All 23;
Learned Senior Counsel for the Respondent-Corporation, on the other hand, has relied upon the following judgments:
1. Municipal Corporation Ujjan and Anr. vs BVG India Limited & Ors., (2018) 5 SCC 462;Uday.P.Kambli 22/43 23/43
WPL 17042 of 2021 - 10-05-2022.doc
2. Central Coalfields Limited & Anr. vs. SLL-SML (Joint Venture Consortium) & Ors., (2016) 8 SCC 622;
3. Afcons Infrastructure Limited Vs Nagpur Metro Rail Corporation Limited & Anr., (2016) 16 SCC 818;
4. The Bharat Coking Coal Ltd & Ors. vs AMR Dev Prabha & Ors., Civil Appeal No. 2197 of 2020;
22. The entire controversy revolves around the 'documents' submitted by the Joint Venture of the Petitioners to certify the technical experience of Respondent No. 5 - Trenchless in Horizontal Directional Drilling (HDD) works as specified in the e-Tender document and with whom the Joint Venture of the Petitioners had entered an MOU as a technical service provider for part of the Project.
23. It is necessary, at the outset, to have a look at the relevant clauses of the Tender document. Section 1 of Tender document interalia stipulates that the bid process is to comprise of 3-stage system. The relevant clause in Section 1 reads as under:
"As per THREE Packet systems, the document for Packet A & B is to be uploaded by the bidder vendors' document online in Packet A, B. Packet A, B & C shall be opened on dates as mentioned in header data. All the responsive and eligible bidders if they so wish can be present at the time of opening of bids in the office of Chief Engineer (SWD). The Packet C shall be opened if bids submission in Packet A & B satisfies/includes Uday.P.Kambli 23/43 24/43 WPL 17042 of 2021 - 10-05-2022.doc all the requirements and same are found acceptable to the Authority." (emphasis supplied)
24. Section 2 of the Tender document deals with the `Eligibility Criteria'. The Eligibility Criteria is bifurcated into four categories - (1) Technical Capacity; (2) Financial Capacity; (3) Technical Experience; and (4) Bid Capacity. Insofar as (1) Technical Capacity, (2) Financial Capacity and (4) Bid Capacity is concerned, there seems to be no issue. The controversy is about # (3) Technical Experience. The Technical Experience is specified in Clause 3 of Section 2 of the Tender document, as amended by Corrigendum 12. It reads as under:
"Technical Experience For assessing the technical capacity of bidder as per clause 1.(II) similar work shall mean the completed works of laying Gravity / rising main in sewage Network / SW drain network.
AND The bidder shall have experience of providing and laying Sewer / Water Petroleum / Gas line / Telecommunication cables / High Power Cables by HDD (Horizontal Directional Drilling) in extremely hard Rock having hardness factor not less than 5 (Mohs) and 250 Mpa for the cumulative minimum length of 150 RM in completed or on- going projects in MCGM / Semi Govt. / Govt. & Pubic Sector Organizations during last seven (7) years.
OR They should submit memorandum of understanding (MOU) with a firm and the firm should have laying experience as per the requirement given above either in his own capacity or as an official approved Subcontractor. The tenderer has to submit all the credentials of the firm with whom they are entering the MOU.
AND Uday.P.Kambli 24/43 25/43 WPL 17042 of 2021 - 10-05-2022.doc The bidder or technology provider shall have experience of carrying out excavation by Pulse Plasma technology or any other similar technology. The technology for rock excavation shall have zero shock wave with permissible sound level & vibration velocity less than 1 mm/sec. The technology shall be certified by PESO (Petroleum & Explosive Safety Organisation, India) as a non-explosive process. (The contractor has to quote considering the site condition and no extra/separate payment will be made for using Pulse Plasma or any other similar technology for excavation in rock)."
25. Section 6 of the Tender document deals with 'Instructions to Applicants". In the Note under the head - `Submission of Tenders', `Packet B', it is stated -
"Note:
1. If it is found that e-tenderer has not submitted required documents in Packet "B" then, the shortfall will be communicated to the tenderer through e-mail only and compliance required to be made through email within a time period of three working days (as specified in the departmental email) otherwise tenderer will be treated as non-responsive."
26. Section 6 also sets out what is curable defect and non-curable defect. Non-curable defect has been stated in section 6 of the Tender document in the following terms:
"II. Non-curable Defect shall mean
a. In-adequate submission of EMD/ASD amount.
b. In-adequate of technical and financial capacity with respect to
Eligibility criteria as stipulated in the tender.
c. Wrong calculation of Bid Capacity.
d. No proper submission of experience certificates and other
documents etc."
(emphasis supplied)
Uday.P.Kambli 25/43
26/43
WPL 17042 of 2021 - 10-05-2022.doc
27. Section 9 specifies the General Condition of Contract, Clause 118 whereof, reads thus:
"118. The Bidder whose Bid is adjudged as responsive in terms technical and financial requirements of this tenderer and who's assessed Bid Price is the lowest, shall be declared as the selected Bidder (the Selected Bidder - L1")".
28. Inasmuch as the Petitioners, who formed the Joint Venture, did not possess one of the required technical experience i.e. with respect to Horizontal Directional Drilling (HDD) for excavating hard rock formations having a hardness factor of not less than 5 Mohs and 250 Mpa, the Joint Venture of the Petitioners had executed an MoU dated 13-11-2020 with Respondent No.5 -Trenchless, as technology service provider to the Joint Venture relating to the HDD works required to be undertaken as part of the Project. This was permissible under Clause 3 Section 2 of the Tender document.
29. Having given our thoughtful consideration to the rival submissions of the learned Counsel for the parties, we, prima facie, find that the entire decision making process adopted by the Respondent-Corporation is perverse, arbitrary and flawed and not in accordance with the mandatory tender conditions. In the first blush, therefore, we were inclined to direct a re-tender. We however note that the Project is a vital public project and is in public interest and on a closer scrutiny of the facts and circumstances of the Uday.P.Kambli 26/43 27/43 WPL 17042 of 2021 - 10-05-2022.doc case, we are of the view that Respondent-Corporation needs to re-consider its decision to disqualify the Joint Venture of the Petitioners by granting an opportunity to the Petitioners to submit all relevant documents to satisfy the Respondent-Corporation with regard to the certification of the technical experience of the Respondent No. 5-Trenchless. We draw support from such course adopted by the Supreme Court in Tata Cellular v/s. UoI (supra) as evident from paragraph 155 of the said judgment.
30. Alongwith the submission of bid on 16-02-2021, the Joint Venture of the Petitioners had in Packet B, submitted a Final Completion Certificate dated 27-03-2018 issued by Advance BFEW Consortium, the main Contractor for HPCL Project, certifying that Respondent No. 5-Trenchless had completed the works of installation of Pipelines by HDD method at various terrain in rock of more than 250 Mpa compressive strength. Under the 'Note' in Section 6 (of the Tender document) reproduced above, it is provided that if the tenderer has not submitted the required documents in Packet 'B', the shortfall is to be communicated to the tenderer and compliance is required to be made within 3 working days, else, the tender is to be treated as non-responsive. Upon scrutiny of Packet B (and Packet A), the Respondent-Corporation addressed the shortfall letter dated 09-03- 2021, interalia, pointing out that the Experience Certificate from employer Uday.P.Kambli 27/43 28/43 WPL 17042 of 2021 - 10-05-2022.doc as per tender condition was not submitted by the Petitioners. Pursuant to the shortfall letter dated 09-03-2021, the Petitioners, on 11-03-2021 (i.e within 3 days as required under the Tender document), interalia, submitted Certificate dated 12-03-2021 issued by Advance BFEW Consortium in favour of Respondent No.5-Trenchless, interalia, certifying that Respondent No.5-Trenchless had successfully undertaken HDD works through rock formation having hardness in excess of 5 (Mohs) for HPCL Project (alongwith the same Final Completion Certificate issued by Advance BEFW Consortium submitted earlier alongwith the bid). Without responding to the said letter dated 11-03-2021, on 31-03-2021, the Respondent No. 3-Dy Chief Engineer called upon the Petitioners to make a presentation of their technical proposal in the form of not more than 20 slides in the format circulated earlier, before the Technical Advisory Committee and the team of officials of the Respondent-Corporation in a virtual meeting scheduled on 01-04-2021.
31. Under Clause 3 of Section 2 of the Tender document, the tenderer has to submit all credentials of the firm with whom they are entering the MOU. Under Section 1 of the conditions of Tender document, Packet C is to be opened only if bids submission in Packet A & B satisfies/includes all the requirements and same are found to be acceptable to the Authority. We are Uday.P.Kambli 28/43 29/43 WPL 17042 of 2021 - 10-05-2022.doc of the view that if the Respondent-Corporation was not satisfied with the fresh documents submitted by the Petitioners on 11-03-2021 in compliance with the shortfall letter dated 09-03-2021, the Respondent-Corporation ought to have simplicitor rejected the bid of/disqualified the Petitioners at the technical bid stage itself by treating the bid of the Petitioners as non- responsive or atleast issued another letter calling for further compliances. Instead, notwithstanding the aforesaid mandatory condition of the Tender document, the Respondent-Corporation went ahead and processed the bid of the Joint Venture of the Petitioners and the officials of the Respondent- Corporation orally informed the Petitioners that they require an Undertaking that the JV of the Petitioners would adhere to the tender conditions relating to the experience required for HDD works and would submit all necessary documents. Accordingly, the Petitioners submitted a letter/Undertaking in the following terms:
"... ...
Due to current COVID conditions and restrictions, all Government offices are working at low capacities and hence the process is getting prolonged.
We hereby solemnly declare that we will adhere to the tender conditions for experience of HDD work and will submit all the necessary documents. We kindly request the authority to continue with the Packet C opening of the above referred bids. ... ..."Uday.P.Kambli 29/43 30/43
WPL 17042 of 2021 - 10-05-2022.doc
32. On 03-06-2021, four officers of the Respondent-Corporation including Respondent No. 3-Dy Chief Engineer (the deponent of Affidavit-in- Reply on behalf of the Respondent-Corporation), signed Minutes seeking approval of the Chief Engineer (SWD) to open Packet C. In the said Minutes, reference is made to the Scrutiny Report prepared by M/s TUSPL, a consultant appointed by the Respondent-Corporation which found three bidders, including the Joint Venture of Petitioners as 'responsive'. The said Report also makes a reference to the Technical Advisory Committee (TAC) formed by the Respondent-Corporation for the Project who is stated to have reviewed the technical aspects of the bids on 01-04-2021 which was attended by all the bidders, TAC members, Consultant M/s TUSPL and various officials of the Respondent-Corporation. The relevant extract of the Minutes dated 03-06-2021 reads thus:
"M/s TUSPL as a consultant have scrutinized al the documents uploaded by the above bidders in Packet 'A' and 'B'. The detailed scrutiny report prepared by M/s TUSPL, the evaluation report for Packets 'A & B' is attached at Pg. No. C-53 to C-67 & C-87 to C-
105. All the above three bidders are found to be responsive as per report of M/s. TUSPL, the consultant. Further the performance certificates submitted by the tenderers are verified from respective authorities. Also, the TAC formed for the said project have reviewed the Treatment Process Calculations, Work Methodology, related drawings and respective submissions etc. on 01.04.2021, through Video Conferencing, which was attended by all the bidders, i.e. TAC Members, S.O., S.P. & S.W.D. officials and Consultant M/s. TuSPL. As per the MOM of TAC Meeting the submissions regarding all technical specifications as mentioned and requirements of the projejct as in the tender shall be adhered without change in cos as Uday.P.Kambli 30/43 31/43 WPL 17042 of 2021 - 10-05-2022.doc submisstted in price proposal are received from al the bidders on same day attached at Pg. No. C-15 to C-19.
As the preparation of estimates for subject tender was done long period back ie. almost two years back, it was felt necessary to revise the estimates. Hence, as per directions of Hon'ble AMC (P) the revidsed estimates were prepared after TAC Meeting held on 01.04.2021 in order to realistically compare the estimates with offers received for the tender. Accordingly, it is proposed to open Packet C for work code WS-537 for Oshiwara- Walbhat River.
In view of above, Dy.Ch.Eng (S.W.D.)W.S./Ch.Eng. (S.W.D.)'s approval is requested to open the Packet 'C' on 04- 46.2021 of all the following responsive bidders for the work code WS-537.
Sr. No. Name of the bidder
1 M/s Eagle Infra India Ltd. & M/S Mahalasa Constructions
Pvt. Ltd. (JV)
2 M/S Shapoorji Pallonji And Company Private Limited &
M/S Konark Structural Engineers Pvt. Ltd. (JV)
3 M/S Skyway Infraporjets Pvt. Ltd. & M/s Speco
Infraprojects Pvt. Ltd (JV)
Submitted please."
33. By another communication dated 03-06-2021, the Respondent-
Corporation informed the Petitioners that the opening of Packet C was scheduled for 04-06-2021.
34. On 09-06-2021, the Respondent-Corporation informed the Petitioners that the Packet C was opened on 04-06-2021 in presence of the bidders' representatives and requested the Petitioners to provide cost Uday.P.Kambli 31/43 32/43 WPL 17042 of 2021 - 10-05-2022.doc break-ups, etc. The relevant extract of the said communication is reproduced hereunder:
"You are requested to provide the cost breakups and justifications of the individual items quoted and also as per the tender conditions of the project has to be evaluated on Life Cycle Cost which include the Capital Cost, Operational cost and Cost towards Net Power Consumption at the installed capacity level. You are requested to submit the cost bifurcation of the items or sub-works quoted by you in the follwng format, which was also the part of the tender as per Annexure-06 of the Corringendum-16".
35. By communication dated 11-06-2021, the Respondent-Corporation informed the Petitioners that its JV is L-1 bidder and directed the Petitioners to submit rate analysis. The said communication reads thus:
"Packet C of Word code WS-537 was opened on 04-06-2021 and you are L-1 bidder for the said work. As per tender condition, you are hereby directed to submit rate analysis (through email) of items for the said work in the format annexed at 'Annexure D' and justification of the quoted rates within 3 days from receipt of this email"
The Petitioners accordingly complied with the aforesaid communications dated 09-06-2021 and 11-06-2021 of the Respondent-Corporation.
36. Notwithstanding all the above communications and actions/compliances, the officials of the Respondent-Corporation, thereafter, for the first time raised certain issues about requirement of a Certificate on the letter-head of Government Organisation. The Petitioners therefore, by communication dated 22-06-2021, recorded the above fact and asserted that the Certificate submitted by them earlier fulfills the tender Uday.P.Kambli 32/43 33/43 WPL 17042 of 2021 - 10-05-2022.doc requirement. The Petitioners informed the Respondent-Corporation that the Respondent No. 5-Trenchless is already in discussion with HPCL through the main Contractor Advance BFEW Consortium in order to obtain the necessary document, and will do the needful ASAP. The Petitioners also for the first time forwarded a Certificate issued by Engineers India Ltd, a Government organization, on its letter-head certifying that Respondent No. 5-Trenchless had completed the work of installation of Pipelines by HDD at Thane Vashi Creek for BPCL Project. (the earlier documents submitted by the Petitioners were in respect of HPCL Project)
37. By communication dated 24-06-2022 sent to the Respondent- Corporation, the Petitioners submitted - (1) Letter of Intent dated 17-02- 2017 on the letter-head of HPCL in favour of Advance BFEW Consortium in respect of Uran Chakan Shikrapur Pipeline (UCPSL Project), and (2) Completion Certificate dated 13-05-2020 on the letter-head of HPCL certifying that the work of UCSPL Project was awarded to Advance BFEW Consortium.
38. On 26-06-2021, the Petitioners addressed a communication to the Respondent-Corporation, interalia, pointing out that in respect of BPCL project the Respondent No.5-Trenchless was the main contractor and the Engineer India Ltd. was the Project Management Consultant (PMC). Uday.P.Kambli 33/43 34/43
WPL 17042 of 2021 - 10-05-2022.doc 39 In the Additional Affidavit dated 28-09-2021, the Respondent No.3- Deputy Chief Engineer, has annexed the office note dated 30-06-2021 reflecting the decision made by the Respondent No.2-Corporation with respect to the disqualification of the Petitioners as well as a Chart of bid evaluation. The relevant extract of the said office note reads as under:
"The representation of M/s Shapoorji Pallonji & Co. - Konark JV was contacted telephonically on various occasions requesting them to submit the HDD experience certificate of HDD work, however, they have still not submitted the requisite certificate of HDD work. Even after continuous follow up, representative of M/s Shapoorji Pallonji & Co.-Konark JV bothered to give only an undertaking, stating that, the necessary experience certificate of HDD method will be submitted and requested to open Packet "C" (copy at page no. C/23) The submitted undertaking was considered only in the interest of fair competition and Packet "C" for the bid was opened on 04.06.2021. After opening of Packet "C", continuous follow up was done with representative of M/s Shapoorji Pallonji & Co. - Konark JV for submission of the requisite experience certificate of HDD method.
However, as the bidder M/s. Shapoorji Pallonji & Co. - Konark JV has neglected the follow up done by this office staff and has failed to submit the requisite HDD experience certificate on time, their bid shall be treated as non-responsive.
In view of above, Ch.E.(S.W.D)/D.M.C.(infra)/A.M.C (P)'s approval is requested, to disqualify M/s Shapoorji Pallonji & Co. - Konark JV for bid no. 7100177428 i.e. for Oshiwara / Walbhat river & Uday.P.Kambli 34/43 35/43 WPL 17042 of 2021 - 10-05-2022.doc forfeit 10% of EMD amount for non compliance of experience certificate as per tender condition."
and it is pointed out that the Chart shows the remark that "certification of approved sub-contractor with mentioned required work experience as per tender document needs to be provided."
40 On 06-07-2021, the Petitioner No.1 addressed an email to the BPCL with copy marked to Respondent No.3-Dy.Chief Engineer, interalia, calling upon BPCL to confirm the Certificate (BPCL Project) issued by Engineers India Ltd.
41 It only after the above communications and actions/compliances, the Respondent No.3-Dy.Chief Engineer, interalia, intimated to the Petitioners by the impugned termination letter/email dated 13-7-2021 that they had failed to submit the requisite documents necessary to fulfill the mandatory condition and therefore they are disqualified from the project and that 10% Security Deposit has been forfeited for non-compliance.
42. The central question that begs an answer is how could the Respondent-Corporation, after opening packet-C and declaring the Petitioners as "L-1" (Lowest Bidder), disqualify the Petitioners. It is noted that the Petitioners had submitted a Certificate dated 30-10-2020 issued by Engineer India Ltd., the Project Management Consultant (PMC) appointed for BPCL project. In the said BPCL project, the Respondent No.5- Uday.P.Kambli 35/43 36/43 WPL 17042 of 2021 - 10-05-2022.doc Trenchless was appointed as main contractor for HDD work. By email dated 06-07-2021, the Petitioners requested BPCL to confirm that the certificate provided by Engineer India Ltd. to Respondent No.5-Trenchless is for and on behalf of BPCL work only. Copy of the said email was marked to Respondent No.3-Dy.Chief Engineer (SWD). The BPCL vide email dated 07-07-2021 certified that Respondent No.5-Trenchless had "executed ... ... HDD works in professional very way with technical approach ... ... (with) rock of hardness factor = 5 Mohs and crushing value = 250 Mpa for a length more than 200 RMT." The BPCL also confirmed that certificate issued to the Engineer India Ltd. (acting as BPCL Project Management Consultant) was true and genuine. However, the Respondent-Corporation has disregarded/not considered the said Certificate.
43. From the above, it is apparent that in the first instance, the Respondent-Corporation and its officers did not see any issue in the documents submitted by the Petitioners and found that the shortfalls/deficiencies were curable, even after submission of fresh documents by the Petitioners in compliance with the shortfall letter dated 09.03.2021. The Tender document condition as regards the technical experience in Section 2 provides that for the "Eligibility Criteria' the tenderer has to submit all credentials of the firm with whom they are entering the Uday.P.Kambli 36/43 37/43 WPL 17042 of 2021 - 10-05-2022.doc MOU with. The Respondent-Corporation and its officers have not raised any grievance at any point of time as regards credentials of Respondent No.5-Trenchless. In the Affidavit-in-Rejoinder, dealing with the credentials of the Respondent No.5-Trenchless, the Petitioners have stated in paragraph 1-(xiii) to (xv):
"xiii. In any event, it is undeniable that Respondent No.5 is among Asia's largest HDD Contractors, and has been providing its trenchless services to the industry for nearly two decades. It has carried out some of Asia's Largest HDD works in last 7 years. Some of them are as under:
a. HDD work of India's Largest HDD crossing of 36" (900 mm dia) X 2000 meters across Yamuna River, Yamuna Nagar Haryana, India.
b. HDD Intersection drilling of 18" (450 mm dia) + 6" (150 mm dia) X 2552 Mtr across Vashi Creek for BPCL.
c. HDD Intersection drilling of 18" (450 mm dia) + 6" (150 mm dia) X 2530 Mtr across Manear River, Telangana India.
d. The criteria for HDD work in Length is only 200 running meter. M/s.TESPL has carried out numerous HDD works for Government Agencies ranging from 1700 RM to 2500 RM in last 7 years.
e. It has the largest fleet in India comprising of 24 rigs machines ranging from 40 tons to 500 tons.
Uday.P.Kambli 37/43 38/43
WPL 17042 of 2021 - 10-05-2022.doc f. M/s. TESPL set a new record in India for the vertical Depth of a River crossing using Horizontal Directional Drilling (HDD) with 140 meters beneath the ground Level in Chambal River work in 2015.
xiv. From the above it can be seen that, Respondent No.5 has extensive experience in providing HDD services to numerous government undertakings and agencies like HPCL, BPCL, GAIL, OIL, ONGC, IOCL, IOAGPL and GTPL, all over the country. A copy of Respondent No.5's performance brouchure is annexed herewith as Exhibit"B". A list of the HDD works carried out and completed by Respondent No.5 for Government Undertakings is also annexed as Exhibit "C". Copies of completion certificates issued by various governmental organizations are annexed as Exhibit"D". Photographs and Paper Articles of work carried out for HDD work are annexed as Exhibit "E".
xv. The Petitioners thus submit that they are fully qualified, as required by the Tender terms and conditions, and have in place a MoU with a firm (Respondent No.5) having laying experience as per the MCGM's requirement as an officially approved Subcontractor. I, therefore, deny that the Petitioners "failed to prove their eligibility for technical capacity", as alleged or at all."
44 On the plain reading of said section 2 'Eligibility Criteria' of the Tender document, we find that it is not categorically stated therein as to who (whether the Government Organization or main Contractor) and in what Uday.P.Kambli 38/43 39/43 WPL 17042 of 2021 - 10-05-2022.doc manner or format the experience certificate of the sub-contractor (technical provider) is required to be submitted. It cannot therefore, be ruled out that at the time of submission of the bid, the Petitioners were under a bonafide impression that the Certificate of the Contractor would suffice. We find that the Officers of Respondent-Corporation had all along engaged and continued to engage with the Petitioners and even opened Packet believing that there was no issue so far as credentials of the Respondent No.5-Trenchless is concerned and that the certification of the Respondent No.5-Trenchless was a curable defect and more of a formality.
45. After taking an Undertaking from the Petitioners, the Respondent- Corporation, in breach of the mandatory terms of the tender document, went ahead and opened Packet C and not only declared the JV of the Petitioners as responsive but also declared the Petitioners to be L-1 (lowest bidder). Such a course was clearly impermissible, given the mandatory condition of the Tender document that Packet C was to be opened only upon the tenderer being held to be responsive after opening of Packet A & B. When the tender condition was clear that Packet C was to be opened only after the Authority was satisfied with the technical aspects in Packets A & B, we are unable to accept the contention on behalf of the Respondent- Corporation that the Respondent-Corporation went ahead with the opening Uday.P.Kambli 39/43 40/43 WPL 17042 of 2021 - 10-05-2022.doc of Packet C of the Petitioners only upon the Petitioners submitting an undertaking that they would submit the documents. It is pertinent to note that one of the non-curable defect as mentioned in section 7 is that "no proper submission of experience certificate and other documents etc." What is the proper document to be submitted is nowhere specified and left to the discretion of the Respondent-Corporation. As a matter of fact even the tender conditions do not categorically state that a Certificate would be required from Government Undertaking/Organization, as indicated earlier.
46. From the material on record, it is evident that not only the Petitioners came to be declared as L-1, but on 22 July 2021, the Respondent No.3-Dy. Chief Engineer wrote to L-2 asking it to take back his EMD, which it had given on 23-06-2021.
47. In light of the above and considering the manner in which the Respondent-Corporation has conducted itself, we have no hesitation in concluding that the Respondent-Corporation has acted arbitrarily and in complete breach of the mandatory conditions of the tender document bordering on perversity in the process of decision making. 48 We, however, note that though the Petitioners had earlier agreed to submit certificate by HPCL, certifying Respondent No.5-Trenchless to be Uday.P.Kambli 40/43 41/43 WPL 17042 of 2021 - 10-05-2022.doc the sub-contractor, they were unable to submit the same. The Petitioners have thereafter submitted documents in relation to BPCL Project and forwarded copy of Certificate issued by Engineers India Ltd., [a Government Undertaking and the Project Management Consultant (PMC) appointed for BPCL Project] wherein Respondent No.5-Trenchless was appointed as sub- contractor and has also forwarded their email to the Respondent No.3-Dy. Chief Engineer certifying that Respondent No.5-Trenchless was the sub- contractor for the BPCL Project. In the Affidavit-in-Rejoinder, the Petitioners have annexed a copy of letter of acceptance issued by BPCL to Respondent No.5-Trenchless for the work in respect of which Engineers India Ltd. as a PMC had issued a Completion Certificate to Respondent No.5-Trenchless. In the facts and circumstances of the case and more particularly since the work to be undertaken by Respondent No.5- Trenchless in respect of the project is of a highly technical nature, we cannot by a writ of mandamus direct that the contract be awarded to the Joint Venture of the Petitioners. The Respondent-Corporation being the author of the Tender document would after all be the best person to understand and appreciate the requirements and interpret the documents in respect of certification of technical experience of the Respondent No.5- Trenchless. (see Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited (supra). However, in the peculiar facts and Uday.P.Kambli 41/43 42/43 WPL 17042 of 2021 - 10-05-2022.doc circumstances of the case and the project being an STP project which is stated to be a vital Public Project and in public interest, we are of the view that the Petitioners ought to be granted one more opportunity to satisfy the Respondent-Corporation as regards the documents certifying the technical experience of Respondent No.5-Trenchless, which on the own showing of the Respondent-Corporation was a curable defect.
49. Considering the nature of controversy involved and the order that we propose to pass, it is not necessary for us to deal with all the judgments cited by the learned Counsel for the parties.
50. Taking overall view of the matter, in our opinion, the following order would meet the ends of justice:
ORDER
(i) The impugned letters dated 13 July 2021 and 28 July 2021 terminating the bid of the Joint Venture of the Petitioners and disqualifying the Petitioners from the e-Tender are set aside.
(ii) The Petitioners are permitted to submit all documents pertaining to the certification of technical experience of Respondent No.5-Trenchless to Uday.P.Kambli 42/43 43/43 WPL 17042 of 2021 - 10-05-2022.doc the Respondent-Corporation including documents which may not have formed part of the bid document alongwith a covering letter, within two weeks from today. On submission of the documents, the Respondent-
Corporation shall take a decision on the acceptability of the documents expeditiously and in any event within a period of four weeks from the date of submission of the documents, without being influenced by its earlier decisions.
(iii) It would be open for the Respondent-Corporation to seek further documents or clarifications from the Petitioners before taking a final decision.
51 The Writ Petition is disposed of in the aforesaid terms. Digitally signed
ANANT by ANANT
KRISHNA KRISHNA NAIK
Date: 2022.05.10
NAIK 18:15:21 +0530
(S.G. DIGE, J.) (A.A. SAYED, J.)
Uday.P.Kambli 43/43