Bombay High Court
M/S. Sahyadri Logistic Pvt. Ltd. And Ors vs Brihan Mumbai Electric Supply And ... on 16 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3217
Author: Madhav J. Jamdar
Bench: R.D. Dhanuka, Madhav J. Jamdar
1-wpst94178-20.doc
vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO.94178 OF 2020
M/s.Sahyadri Logistic Pvt. Ltd. & Ors. ...Petitioners
V/s.
The Brihan Mumbai Electric Supply &
Transport Undertaking & Ors. ...Respondents
Mr.Chetan Nagare for the Petitioners.
Mr.R.P. Kadam, AGP for the State - Respondent No.4.
Mr.G.S. Godbole with Mr.Aseem Naphade and Mr.Ansh Misra i/b
M.V. Kini & Co. for the Respondent No.1.
CORAM : R.D. DHANUKA &
MADHAV J. JAMDAR, JJ.
DATE : 16TH DECEMBER, 2020.
(THROUGH VIDEO CONFERENCE) P.C. :-
1. By this petition filed under Article 226 of the Constitution of India, the petitioners seek an order and direction against the respondent no.1 to disqualify the respondent nos.2 and 3 from the Technical Bid for not fulfilling the eligibility norms in respect of the tender described in prayer clause (b) of the petition. The petitioners also seek an order and direction against the respondent no.1 to consider the claim of the petitioners in respect of the tender in 1/7 1-wpst94178-20.doc question.
2. The respondent no.1 invited the tender on 30 th July, 2020 for operation of Stage Carriage Services (with driver and conductor) for public transport of 600 SD Non A.C. CNG Buses in the city of Mumbai and its extended Suburb on gross cost contract (GCC) Model in three packages each containing 200 SD Non A.C. CNG Buses. On 10th August, 2020 a pre-bid meeting was held. The petitioners submitted its bid on 22 nd August, 2020. On 28th September, 2020, the respondent no.1 opened the petitioners' bid.
On 9th October, 2020, the respondent no.1 published the report issued by the Technical Suitability Evaluation Committee. The bid of the petitioners was rejected on the ground that the technical bid of the petitioners was non responsive and not in accordance with the terms of the tender. The respondent no.1 thereafter accepted the bid of the respondent nos.2 and 3 as successful bidders.
3. Mr.Nagare, learned counsel appearing for the petitioners invited our attention to some of the documents annexed to the petition and also some of the terms of the tender such as definition of buses under clause 1.5 at page 34 of the petition, clause 1.19 i.e. the definition of the successful bidder, the query raised by the respondent no.1 and the response thereto by the petitioners in respect of the consortium agreement submitted by the petitioners 2/7 1-wpst94178-20.doc showing final stake of the lead member as zero and the response thereto. It is submitted by the learned counsel that whether the contribution of the lead member should be major or not was to be decided after award of contract by executing the consortium agreement and not at the stage of submission of the bid. He submits that this aspect was made clear by the petitioners at page 221 of the petition. It is submitted that the petitioners had made it clear that the investment part would be taken care by the Association Member. It was stated by the petitioners that as specified in clause 9 to Schedule of RFP as and when the Special Purpose Company would be formed post award of contract, majority stake will be held by the lead member.
4. The next submission of the learned counsel for the petitioners is that the bid submitted by the respondent nos.2 and 3 also was not responsive in accordance with the terms and conditions of the tender and thus could not have been accepted. In support of this submission, learned counsel for the petitioners invited our attention to the report of Mandatory Technical And Commercial Eligibility Criteria, Schedule-III and more particularly clause 2(B) and would submit that the respondent nos.2 and 3 also did not own 200 SD / Midi / Mini buses. He submits that though the respondent nos.2 and 3 did not comply with the said mandatory requirement, the 3/7 1-wpst94178-20.doc respondent no.1 has illegally considered the bid submitted by the respondent nos.2 and 3 as responsive.
5. Mr.Godbole, learned counsel appearing for the respondent no.1 on the other hand submits that the understanding of the petitioners about the terms of bid was also not that the bidder itself shall own 200 buses at the stage of submission of the bid but that requirement was to be fulfilled after award of the contract. In support of this submission, learned counsel invited our attention to the bid submitted by the petitioners.
6. Insofar as the first submission made by the learned counsel for the petitioners is concerned, a perusal of clause 8.1 read with clause 9 of Schedule-II clearly indicates that the bid could be submitted by a Consortium of companies, sole proprietorship firms or partnership firms or foreign firms. The Consortium Agreement must provide the details of formation of the consortium, percentage of stakes of each consortium member and the role of each member of the Consortium, with reference to the project. However, the bidder, in case of a sole bidder / lead member (as applicable) shall hold majority stakes in the SPC for a period of (2) two years during the term of the agreement and after the said period the said sole bidder / lead bidder may reduce its stake to not less than 26%.
7. Clause 1.14 clearly provided that the lead member who 4/7 1-wpst94178-20.doc has been nominated as lead member by the bidder in consortium agreement shall be liable to comply with and shall be responsible for furnishing of Earnest Money Deposit and in case of award of the contract, the security deposit-cum performance guarantee and all other responsibilities towards execution of the contract.
8. Though a specific query was raised by the respondent no.1 and responded by the petitioner regarding financial stake of the lead member shown as nil as the same was not in compliance with the tender conditions, in our view, the respondent no.1 rightly declared the petitioners' bid as non responsive. Our attention is invited to the Consortium Agreement which was submitted by the petitioners along with tender bid which clearly indicates the name of Bhagirathi Transcorpo Private Limited as lead member and its financial particulars showing as Nil. In our view on this ground itself the responded no.1 rightly rejected the bid of the petitioners as non- responsive being not in compliance with the clauses referred to aforesaid.
9. If we accept the submission of the learned counsel for the petitioners that financial stake of the lead member would be relevant and was to be disclosed only after the award of contract and not on the date of submission of bid, it will be clearly in the teeth of the tender condition. The Consortium Agreement was to be submitted 5/7 1-wpst94178-20.doc along with the bid which would indicate that the lead member who would be part of the consortium if the contract is awarded would have majority share in the consortium. The petitioners having shown the financial stake of lead member as Nil, we do not find any infirmity in rejection of technical bid of the petitioners by the respondent no.1.
10. Insofar as the second submission of the learned counsel for the petitioners that the bidder ought to have owned 200 buses is concerned, a perusal of clause 2(B) of Mandatory Technical And Commercial Eligibility Criteria clearly indicates that out of 200 buses, minimum 50 owned buses shall be of Stage Carriage permit in single / multiple orders and balance 150 buses can be of any type viz. Stage Carriage permit or Private / Government organization for operations & maintenance in single / multiple orders. First part of the clause provides that the bidder shall have experience of having executed / in the process of execution ongoing projects, minimum 200 200 SD / Midi / Mini buses. A perusal of the tender bid submitted by the petitioners itself indicates that the understanding of the said clause by the petitioners and the submission made across the bar are contradictory and self destructive during the course of oral argument.
11. We have perused the detail affidavit filed by the respondent no.1 which clarifies this position. In our view, there is no 6/7 1-wpst94178-20.doc substance in this submission made by the learned counsel for the petitioners.
12. This Court in the order dated 20 th October, 2020 has made prima-facie observation that the petitioners have not fulfilled the eligibility criteria described in the tender process.
13. There is no merit in the petition and the same is accordingly dismissed. There shall be no order as to costs.
(MADHAV J. JAMDAR, J.) (R.D. DHANUKA, J.)
Vasant Digitally signed by
Vasant A. Idhol
A. Idhol Date: 2020.12.18
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