Case Note & Summary
The writ petition under Article 226 of the Constitution of India was filed by Shri Balaji Trading Company, a proprietary firm engaged in supplying essential commodities under the Mid-Day Meal Scheme since 2010-2011, primarily as a sub-contractor for Maharashtra State Cooperative Consumer Federation Ltd. and Maharashtra State Cooperative Marketing Federation Ltd. The petitioner challenged an e-tender notice dated 3rd November 2018 issued by the Directorate of Education (Primary), Maharashtra State, inviting bids for supply of foodgrains and ingredients under the scheme. The petitioner specifically impugned Clauses 2.2(i), 5.1(VIII), and 7.1(2) of the tender notice, which required prospective bidders to submit samples along with their bids along with a non-refundable fee of Rs.20,000 for laboratory testing. The clauses further provided that failure to submit samples would render the bid non-responsive, and if any sample failed laboratory testing, the entire bid would be rejected. The petitioner contended that these clauses were contrary to the Government Resolution dated 26th February 2010, which mandated sample collection and testing only after delivery of goods by the supplier, not at the pre-bid stage. It was alleged that the impugned conditions were inserted at the behest of a group of contractors who had been dominating the scheme since 2010, with the collusion of government officials and laboratory officers, to exclude other eligible bidders by manipulating laboratory reports. The petitioner cited past instances where its own samples, when tested privately, met required norms, but when submitted with tenders were rejected by government laboratories, indicating a nexus. The petitioner also highlighted that the Maharashtra State Cooperative Consumer Federation Ltd. and Maharashtra State Cooperative Marketing Federation Ltd., though accepted as bidders, were merely pass-through entities that sublet contracts to the same set of favoured contractors, leading to inflated costs and supply of inferior quality products. The petitioner argued that the sample testing condition was a tool to systematically eliminate competition and sought quashing of the tender notice and an enquiry by the CBI into the alleged corrupt practices. The petitioner had not submitted a bid due to apprehension of unfair rejection. The court heard arguments from both sides, with the petitioner asserting that the impugned clauses were harsh, arbitrary, and not in conformity with the existing government resolution, and that there was no provision for re-testing after actual delivery. The judgment was reserved on 13th December 2018 and pronounced on 4th January 2019, but the provided text does not include the court's decision, reasoning, or final order.
Issue of Consideration
WRIT PETITION NO.12863 OF 2018
Case Details
2019 LawText (BOM) (01) 34
WRIT PETITION NO.12863 OF 2018
S.S. Shinde, Sunil K. Kotwal
V.D. Sapkal (Petitioner), S.S. Thombre (Respondents)
Shri Balaji Trading Company, Through its Proprietor, Shri Rameshwar Sonwane
1) The State of Maharashtra, Through its Secretary, Education and Sports Department, Mantralaya, Mumbai-2, 2) The Directorate of Education (Primary), Maharashtra State, Dr. Babasaheb Ambedkar Road, Pune
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Nature of Litigation
Writ Petition under Article 226 challenging tender conditions
Remedy Sought
To quash and set aside E-tender notice dated 03-11-2018 and impugned clauses
Filing Reason
Alleged arbitrary and manipulative tender clauses that favor a group of contractors and violate Government Resolution
Issues
Whether clauses 2.2(i), 5.1(VIII), and 7.1(2) of the tender notice are arbitrary and liable to be quashed.
Submissions/Arguments
The impugned clauses are contrary to Government Resolution dated 26-02-2010, which prescribes sample testing only after delivery, not pre-bid.
The condition of sample testing before award of contract is harsh, arbitrary, and intended to reject eligible bidders by manipulating laboratory reports.
Past instances show collusion between a group of contractors and officials, as private tests confirmed quality but government laboratory rejected the same sample.
The requirement that the entire bid be rejected if even one commodity sample fails is excessive and not in conformity with the Government Resolution.
There is no stipulation for re-testing after actual delivery, which undermines the quality control mechanism post-award.
Judgment Excerpts
Clause 2.2 Submission of Samples : The prospective Bidder is required to submit their samples ... along with Demand Draft of Rs.20,000/- ... towards expenses for testing of samples in the Government laboratories ... In case of failure to submit samples ... the bid will be treated as nonresponsive ... If the samples submitted by Bidder fails/ does not confirm to the specification ... the bid will be rejected as non responsive.
Clause 5.1 Qualification Criteria (VIII) Bidder should submit samples along with tender ...
Clause 7.1 Bid Opening (2) The DPEMS shall obtain the report of samples provided by the Bidder from the Government Laboratories ...
Even if one of the sample of one commodity of the total tender item is rejected by the Laboratory, entire bid will be rejected.
The Petitioner had got the sample tested ... from the Government of Maharashtra, Regional Public Health Laboratory and they confirmed the norms, whereas the same sample which was submitted along with the tender, were rejected by the Government Laboratory.
The samples are tested only at the time of tender procedure as technical qualification, for rejecting eligible bidders.
Procedural History
The writ petition was filed under Article 226 challenging the e-tender notice dated 03-11-2018. Rule was issued and made returnable forthwith. Heard finally with consent of parties on 13-12-2018, and judgment reserved, pronounced on 04-01-2019.
Acts & Sections
- Constitution of India: Article 226
