Writ Petition No.2609 of 2014

12th June, 2014.

Petitioner Counsel: Mr. PRADEEP HAVNUR a/w. Ms. MAKAFOUA
Respondent Counsel: Mr. R.S. APTE, Sr. Adv. i/by Mr. N.R. BUBNA

Cases Cited:
Tata Cellular Vs. Union of India, (1994) 6 SCC 651 [Para 6]
Michigan Rubber (India) Limited Vs. State of Karnataka & Ors., 2012 ALL SCR 2452=(2012) 8 SCC 216 [Para 6]
Meerut Development Authority Vs. Association of Management Studies & Anr., (2009) 6 SCC 171 [Para 6]
Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors., (2000) 5 SCC 287 [Para 6,11]

JUDGMENT

A. S. CHANDURKAR, J. :- The issue that arises for consideration in this writ petition under Article 226 of the Constitution of India is whether a prospective bidder can seek enforcement of suggestions/amendments given by him to the authority issuing the bid.

2. The aforesaid issue arises in the backdrop of E-Tender Notice dated 4th January,2014 issued by Respondent No.1 Thane Municipal Corporation. By aforesaid E-Tender notice, the Corporation intended to invite bids for supply, operation and maintenance of vehicle mounted suction-cum-Jetting Machine with Recycling facility for cleaning / desilting of sewer lines in Thane City area. The petitioner No.1 claims to be a leading manufacturer of sewer lines maintenance equipments. According to the Petitioners, after perusing the E tender documents, they found certain technical specifications and qualification criteria to be highly restrictive. Hence, on 20th January, 2014 the Petitioners gave some suggestions/amendments to the Corporation which according to them were not suitable considering the nature of work proposed to be done. A Pre-Bid Meeting was held on 21st January,2014 that was attended by the Petitioners as well as other prospective bidders. After due deliberations the Corporation considered the suggestions/amendments as suggested and thereafter on 1st February,2014 uploaded the remarks of the concerned department to the suggestions/amendments as made. In so far as the suggestions given by the Petitioner No.1 are concerned, out of three suggestions given, one was accepted and two were not accepted. Being aggrieved by the non acceptance of these two suggestions given by it the petitioners have preferred present writ petition praying that the suggestions as given by it be directed to be accepted and a fresh tender be published in that regard.

3. Considering the nature of the controversy, we have heard Shri Pradeep Havnur, learned counsel for the Petitioners and Mr Apte, Senior Counsel for Respondent Nos. 1 to 3 and are deciding the present writ petition finally.

4. The learned Counsel for the Petitioners Shri Havnur has submitted that the suggestions/amendments as proposed by it were with a view to have a fair competition amongst the bidders and said suggestions were in the interest of the Corporation itself. It was submitted that the fact that one of the suggestions given by the Petitioners was accepted itself showed that the Corporation had realized the effectiveness of said suggestions. However, with a view to restrict the bidders, the other suggestions made by the Petitioners were not accepted. It was submitted that the experience of a manufacturer who had supplied the machines in question to private companies working for Government bodies ought to have been recognised. According to the petitioners, they had supplied similar machines to the Delhi Jal Board and hence they had the necessary experience in that regard. The learned Counsel therefore submitted that the Corporation by not accepting all the suggestions / amendments as proposed by the Petitioners had acted in an irrational mannner. It was, therefore, prayed that a fresh tender be directed to be published after taking into consideration all the suggstions / amendments as proposed by the petitioners.

5. On the other hand, Shri R.S. Apte, learned Senior Counsel for the Respondents with Shri N.R.Bubna submitted that the Petitioners had no right whatsoever to insist for acceptance of the suggestions / amendments as made by them. It was submitted that after the pre-bid meeting held on 21st January,2014, the Respondent No.1-Corporation had considered the various queries / suggestions received from the four prospective bidders. While some suggestions were accepted, others that were not found feasible were not accepted. The learned Senior Counsel submitted that the allegation that the Corporation did not intend to have a large number of bidders was without any basis. There was no factual foundation in the pleadings in the writ petition to substantiate said allegation. It was submitted that by holding a pre-bid meeting and considering various suggestions/amendments as received, the Corporation had acted in a fair and transparent manner. In absence of any allegations of malafide, it was urged that the writ petition deserves to be dismissed.

6. Before considering the issue as raised, it would be apposite to keep in mind the following aspects as can be gathered from various decisions of the Supreme Court of India.

(i) (1994) 6 Supreme Court Cases 651,

Tata Cellular Vs. Union of India

(1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

(ii) (2012) 8 Supreme Court Cases 216 : [2012 ALL SCR 2452],

Michigan Rubber (India) Limited Vs State of Karnataka and others

"(c) In the matter of formulating conditions of a tender document and awarding a contract, a greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work;"

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(iii) (2009) 6 Supreme Court Cases 171,

Meerut Development Authority V. Association of Management Studies and Anr

"A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process.

The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations."

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(iv) (2000) 5 Supreme Court Cases 287,

Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and others.

"The authority calling the tender is the best judge as regards conditions prescribed in the tender"

7. As per the tender notice dated 4th January, 2014 a bidder was required to be the manufacturer of vehicle mounted suction cum jetting machine with sewage recycling facility or its authorized dealer. It was further prescribed that the manufacturer should have manufactured and supplied at least one recycling machine of similar or higher capacity and should have also completed minimum one year's operation and maintenance in the preceding five years at any Government/Semi Government Organization.

8. The suggestion given by the Petitioners vide communication dated 20th January, 2014 in this regard was that the experience of a manufacturer who had supplied machines with recycling facilities to private companies / service providers working for Government bodies should be taken into consideration. This suggestion, however, was not accepted. According to the Corporation, manufacturers who have supplied machines to private companies were not acceptable to it. As stated above, the other suggestion given by the Petitioners was duly accepted by the Corporation.

9. According to the Petitioners, by not accepting the suggestions with regard to the supply made to a private company / service provider was with a view to do away with fair competition. According to the Petitioners, the aforesaid suggestion was not accepted with a view to restrict some of the bidders. The petitioners have termed not acceptance of their suggestion as illogical and irrational. For the purpose of considering the grievance of the Petitioners as regards restricting certain bidders and avoiding fair competition, there are no specific averments in the writ petition as regards the bidders who were sought to be favoured by not accepting suggestions of the Petitioners. Similarly, there are no details as regards the bidders who were restricted from bidding on account of non-acceptance of said suggestions. Except terming the decision of the Corporation of not accepting its suggestions as illogical and irrational there is no material on record to indicate that such was the case. Thus, in the absence of any specific averments with regard to the allegation of favouritism, we are not in a position to examine the same. Though the Court can examine the allegation that the terms of invitation to tender were tailor made to suit the convenience of a particular person with a view to eliminate all others from participating in the bidding process, in the absence of any material particulars, it is not possible to go into the said question in the present matter. A mere vague allegation of favouritism without any details cannot be accepted.

10. It is further well settled that the terms of invitation to tender being in realm of contract, the same cannot be open to judicial scrutiny. A bidder participating in the tender process has a right to equality and fair treatment in the matter of evaluation of the bids submitted. In the present case, the Petitioner No.1 was merely a prospective bidder seeking acceptance of its suggestions given to the tender notice. That one suggestion given by the Petitioner was accepted itself indicates that the Corporation had exhibited an open approach on the suggestions received from various prospective bidders. Merely because its other suggestions were not accepted by the Corporation cannot lead to the conclusion that the Corporation had not acted fairly while considering such suggestions received by it. It is clear on a perusal of the minutes of Pre-bid Meeting that the Corporation has given due thought to the suggestions received from various bidders and has also placed on record its remarks while not accepting a particular suggestion. Hence, the submission made on behalf of the Petitioners that the Corporation had acted irrationally in the above matter cannot be accepted.

11. The Corporation was justified in requiring a manufacturer to have experience of at least one year of operating and maintaining the machine in question at any Government / Semi-Government Organization. Such requirement can hardly be termed as arbitrary or irrational. Merely because the Petitioner No.1 did not have aforesaid experience would not be a ground to compel the Corporation to accept the suggestion made by it. As held by the Supreme Court in the case of Monarch Infrastructure (P) Ltd (supra), the Authority calling the tender is the best judge as regards conditions prescribed in the tender. In view of the aforesaid, there is no ground whatsoever made out by the Petitioners warranting interference in writ jurisdiction under Article 226 of the Constitution of India. It may also be observed that tender notice is dated 4th January, 2014 and the work on the basis of the aforesaid tender notice has been duly allotted by the Respondent - Corporation as stated by its learned Senior Counsel. Thus, even in the public interest, it would not be appropriate to set the clock back after lapse of more than five months. Hence, there being no merit in the writ petition, the same is dismissed with no order as to costs.

Petition dismissed.