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2024 DIGILAW 163 (BOM)

Sangram Balavant Repe v. Executive Engineer

2024-01-18

A.S.DOCTOR, D.K.UPADHYAYA

body2024
JUDGMENT/ORDER DEVENDRA KUMAR UPADHYAYA, CJ. - Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, we proceed to decide the writ petition at the admission stage itself. 2. This petition, filed under Article 226 of the Constitution of India, seeks to assail the validity of the impugned decision whereby the tender, in which the petitioner had participated and had quoted the lowest bid, has been cancelled. 3. Submission of the learned counsel for the petitioner is that the impugned decision to cancel the tender is absolutely arbitrary and unreasonable as the petitioner had qualified technically whereupon the financial bid was also opened, where he was declared to be the lowest tenderer, despite that now the tender process has been cancelled taking a plea that none of the tenderers had technically qualified. He, thus, submits that once the petitioner and other two tenderers were declared to have technically qualified, based on which the financial bid was also opened, it was not legally permissible for the respondents to have revisited their decision and cancel the entire tender process. 4. Learned Addl. Government Pleader, however, on the basis of instructions, submits that the tender process has been cancelled for the reason that, admittedly, none of the tenderers, including the petitioner, qualify on the criteria of having experience of similar type of work as per the tender conditions. It has, thus, been argued that in view of the fact, which is undisputable, that the petitioner did not have experience of six work orders of similar type of works, no objection can be taken by the petitioner for cancellation of the tender process for the reason that apart from the petitioner, the other two tenderers, who had earlier technically qualified, also did not fulfill the said criteria of having experience of six work orders of similar type of work. The petition has, thus, been opposed by the learned Addl. Government Pleader, who has prayed that the same may be dismissed at its threshold. 5. We have given our anxious consideration to the arguments made by learned counsel appearing for the respective parties and have also perused the records available before us. 6. The petition has, thus, been opposed by the learned Addl. Government Pleader, who has prayed that the same may be dismissed at its threshold. 5. We have given our anxious consideration to the arguments made by learned counsel appearing for the respective parties and have also perused the records available before us. 6. On 10/10/2023, a tender was floated by the Executive Engineer, Mechanical Division, Satara, for job work required for operation and maintenance in irrigation and non- irrigation period of V.T. Pumps with allied mechanical and electrical equipments including tools, tackles and safety equipments at Urmodi Lift Irrigation Scheme Stage I and II for the year 2023-2024. The petitioner along with three other tenderers submitted his bid and on 4/12/2023, the technical bids were scrutinized wherein three bidders, including the petitioner, were found to have qualified. Apart from the petitioner, the two other bidders, who were technically declared to be qualified, were M/s. Shri Samarth Government and Industrial Suppliers and M/s. Ajay Enterprises. The financial bid was, accordingly, opened wherein the petitioner was declared to be lowest bidder and, therefore, a letter was issued on 5/12/2023 to the petitioner requiring the petitioner to submit additional security amount in pursuance of which the petitioner submitted the additional security amount, however, instead of permitting the petitioner to commence the work, the impugned decision has been taken for cancelling the entire tender process which has necessitated the petitioner to approach this Court by filing the instant writ petition. 7. The reason, as can be gathered from the submissions made by the learned Addl. Government Pleader and also from the available records, for cancellation of the tender process, can be found at page 19 of the writ petition which is a copy of the document uploaded by the department on its website. According to this document, the decision to cancel the tender was taken as per the provisions contained in the new Government Resolution dtd. 18/10/2023 and further that there was some change in Notice Inviting Tender (NIT) conditions/ specifications. Learned Addl. Government Pleader for the State-respondents has also submitted that after the decision to technically qualify the petitioner and other two tenderers, certain complaints were received whereupon the Superintending Engineer had called for a report from the Executive Engineer, pursuant to which the report/letter dtd. 12/12/2023 was submitted by the Executive Engineer to the Superintending Engineer. Learned Addl. Government Pleader for the State-respondents has also submitted that after the decision to technically qualify the petitioner and other two tenderers, certain complaints were received whereupon the Superintending Engineer had called for a report from the Executive Engineer, pursuant to which the report/letter dtd. 12/12/2023 was submitted by the Executive Engineer to the Superintending Engineer. Our attention has been drawn to the said report/letter dtd. 12/12/2023 which contains certain particulars about the information submitted by the petitioner and other two tenderers regarding experience of having execution of similar type of work as specified. Learned Addl. Government Pleader has argued that as per the requirement of experience in similar type of work in terms of the tender conditions, the tenderer should have operated and maintained V. T. Pumps with allied mechanical and electrical equipments of minimum 6.6 KV rating of minimum 1600 HP which ought to be six in numbers. Drawing our attention to the contents of the said report/letter dtd. 12/12/2023, learned Addl. Government Pleader has further stated that the petitioner, as against the said requirement, had to his credit only four numbers of pumps. Accordingly, the petitioner fell short of the requirement. In respect of other two tenderers, namely, M/s. Shri Samarth Government and Industrial Suppliers and M/s. Ajay Enterprises also it has been stated that as per the said report/letter dtd. 12/12/2023 these two tenderers, who were declared to have technically qualified, also did not fulfill the requisite condition relating to experience of similar type of work. 8. So far as the reasons indicated in the document available at page 19 of the writ petition is concerned, it is difficult to agree with the same. The new Government Resolution dtd. 18/10/2023 only specifies the procedure to be followed in tender process. As to how this Government Resolution has been violated while processing the tender in question is not borne out either from the records available before us or from the submissions made by the learned Addl. Government Pleader. The Executive Engineer, who is the tender floating authority, though is present in the Court, also could not satisfy the Court as to how and in what manner the new Government Resolution dtd. 18/12/2023 has been violated. Government Pleader. The Executive Engineer, who is the tender floating authority, though is present in the Court, also could not satisfy the Court as to how and in what manner the new Government Resolution dtd. 18/12/2023 has been violated. It has also to be noticed further that the tender in this case was issued on 10/10/2023 whereas the new Government Resolution is said to have been issued on 18/12/2023, thus, in absence of any provision to the contrary, the provisions of Government Resolution dtd. 18/10/2023 will operate prospectively and will have no bearing so far as the tender floated vide notice dtd. 10/10/2023 is concerned. Thus, the reason indicated in the document drawn from the website of the department for cancellation of the tender process based on the new Government Resolution dtd. 18/10/2023 cannot be approved of. 9. Similarly, the other reason indicated in the said document is the alleged change in NIT, which also does not appear to be relevant, for the reason that as to in what manner and what change in NIT is contemplated is not borne out from the said document. 10. As already observed above, the technical bid was opened on 4/12/2023 wherein along with petitioner two other bidders had qualified and thereafter financial bid was also opened wherein the petitioner was declared to be the lowest bidder [L1]. Having qualified as the lowest tenderer, the petitioner was thereafter directed on 5/12/2023 to furnish additional security which he submitted, however, now the entire tender process has been cancelled, giving reason that can be gathered from the report/letter dtd. 12/12/2023 furnished to the Superintending Engineer by the Executive Engineer and the letter dtd. 13/12/2023, impugned in this writ petition, which is a communication from the Deputy Superintending Engineer to the Executive Engineer regarding cancellation of the tender process. 11. If we peruse the report/letter dtd. 12/12/2023, heavy reliance on which has been placed by the learned Addl. Government Pleader, what we find is that none of the three tenderers, who were earlier declared to have technically qualified, possessed the requisite experience of executing similar type of work as per the requirement. 11. If we peruse the report/letter dtd. 12/12/2023, heavy reliance on which has been placed by the learned Addl. Government Pleader, what we find is that none of the three tenderers, who were earlier declared to have technically qualified, possessed the requisite experience of executing similar type of work as per the requirement. In terms of the stipulation given in the tender notice, a tenderer ought to have had experience of operating and maintaining six numbers of pumps, however, the petitioner, as also the other two tenderers, who were earlier declared to have technically qualified, did not possess this experience. The petitioner possessed the experience of having operated and maintained four numbers of pumps whereas the other tenderer, namely, M/s. Shri Samarth Government and Industrial Suppliers possessed four numbers of pumps. The third such tenderer, namely, M/s. Ajay Enterprises possessed the experience of having operated and maintained three numbers of pumps. Thus, if on the criteria of similar type of work as advertised by the tender notice, technical bid of the petitioner and other two tenderers were evaluated properly, none of the tenderers would have qualified, however, ignoring such an important tender condition, all the three tenderers, including the petitioner, were declared to be technically qualified on 4/12/2023. Such an action has been attempted to be justified by the learned Addl. Government Pleader by submitting that it was done in the interest of the project. 12. The explanation sought to be given by the learned Addl. Government Pleader for declaring the petitioner and other two tenderers to have technically qualified while the technical bid was opened on 4/12/2023, cannot be accepted for the reason that any deviation, while evaluating the technical bid, from the tender conditions which were advertised would be legally not permissible for the simple reason that if the technical bid is evaluated on some relaxed condition, that would result in non-participation of many tenderers who would have otherwise qualified but for the tender conditions which were advertised while issuing the tender notice. Such a mode of action adopted by the Executive Engineer and other authorities concerned while evaluating the technical bid in the instant case is absolutely illegal, arbitrary and hence cannot be approved of. 13. Such a mode of action adopted by the Executive Engineer and other authorities concerned while evaluating the technical bid in the instant case is absolutely illegal, arbitrary and hence cannot be approved of. 13. However, having observed as above, it is also a fact, which is undisputable, that even the petitioner did not fulfill the requirement of experience of similar type of work as specified in the tender notice dtd. 10/10/2023. 14. It has been argued, at this stage, by the learned counsel for the petitioner that now in the new tender floated on 28/12/2023, the tender condition does not specify the work experience to any number of work orders/pumps and, hence, in absence of any such condition in the new tender notice, petitioner ought to be declared to be successful tenderer and, accordingly, direction may be issued to the respondents to issue work order in favour of the petitioner on the basis of the earlier tender process. 15. Such a plea, though in the first blush appears to be plausible and attractive, however, the same merits rejection for the reason that had this new condition been advertised while floating the first tender notice dtd. 10/10/2023, it is not only the petitioner but many other tenderers would also have been eligible and qualified and accordingly, if we accede to the prayer made by the learned counsel for the petitioner, it will be in violation of the principle of equal participation of all eligible tenderers in the matters of grant of public largesse. For the said reason the prayer made by the learned counsel for the petitioner cannot be accepted. 16. In view of the aforesaid discussion, in our considered opinion, petitioner is not entitled to any relief in these proceedings. 17. Before parting with this case, we find it appropriate to express our strong disapproval for the manner in which tender process, pursuant to the notice dtd. 10/10/2023, has been undertaken by the authorities concerned. In all the tender matters concerning the State authorities or its instrumentalities, it is needless to say that fairness and reasonableness ought to be the hallmark. However, in the instant case, after floating the tender dtd. 10/10/2023, the manner in which it has been processed speaks volumes about the arbitrariness and unfairness on the part of the authorities. In all the tender matters concerning the State authorities or its instrumentalities, it is needless to say that fairness and reasonableness ought to be the hallmark. However, in the instant case, after floating the tender dtd. 10/10/2023, the manner in which it has been processed speaks volumes about the arbitrariness and unfairness on the part of the authorities. We hope and expect that such a course of action, while processing any tender, shall not be adopted by the Government officials in any future tender process. 18. The writ petition stands dismissed with the aforesaid observations. Rule is discharged. There shall be no order as to costs.