Case Note & Summary
The petitioners, R and B Infra Project Limited and its authorized signatory, challenged the decision of the Mira Bhaindar Municipal Corporation (MBMC) declaring respondent No.4 eligible to participate in a tender for daily sweeping and cleaning of roads and solid waste management in Zone No.2. The tender was issued on 6 October 2022 with an estimated cost of Rs.91,92,51,405/-. Four bidders participated, and on 12 December 2022, the technical scrutiny committee declared the petitioners, respondent No.4, and another bidder as qualified. The petitioners discovered that respondent No.4 had submitted a certificate from Ulhasnagar Municipal Corporation in the name of Konark Enviro Project Ltd., not respondent No.4, and a Chartered Accountant's certificate certifying turnover. The petitioners objected, but the MBMC accepted respondent No.4's bid as L-1. The petitioners filed a writ petition under Article 226 of the Constitution. The court examined whether the technical bid of respondent No.4 was rightly declared responsive. The court found that the tender condition required a certificate from the authority that awarded the contract, not a Chartered Accountant. The Chartered Accountant's certificate submitted post-bid was not a valid clarification but a new document, violating Clause 31. The court held that the MBMC's decision was arbitrary and set aside the tender award, directing reconsideration.
Headnote
A) Tender Law - Eligibility Criteria - Experience Certificate - The tender condition required certification of successful execution of similar work by the authority that awarded the contract, not by a Chartered Accountant. The court held that the Chartered Accountant's certificate did not meet the requirement, and the bid was wrongly declared responsive. (Paras 12-15)
B) Tender Law - Post-Bid Clarification - Clause 31 of the tender allowed only written clarifications, but the respondent No.4 submitted a Chartered Accountant's certificate after the bid opening, which was not a clarification but a new document. The court held that such post-bid submission was impermissible and violated the principle of level playing field. (Paras 16-18)
C) Tender Law - Judicial Review - The court held that the decision of the tender committee to accept the bid based on invalid documents was arbitrary and liable to be set aside. The court directed the respondent No.1 to reconsider the tender process in accordance with law. (Paras 19-20)
Issue of Consideration
Whether the respondent No.4's technical bid was rightly declared responsive based on a Chartered Accountant's certificate and post-bid clarifications, and whether the tender process was vitiated by allowing such clarifications.
Final Decision
The court allowed the petition, quashed the decision dated 12 December 2022 declaring respondent No.4 eligible and the subsequent allotment, and directed respondent No.1 to reconsider the tender process in accordance with law.
Law Points
- Tender law
- Post-bid clarification
- Eligibility criteria
- Experience certificate
- Chartered Accountant certificate
- Judicial review of tender process
- Level playing field
Case Details
2024 LawText (BOM) (10) 171
Writ Petition No.15766 of 2022
Devendra Kumar Upadhyaya, CJ & Amit Borkar, J.
Aspi Chinoy, Senior Advocate with Shilpi Jain, Hitesh Rajpurohit, Rajeev Sharma, Bishwajeet Mukharjee for petitioners; J.P. Sen, Senior Advocate with Mayuresh Lagu, Sagar Patil for respondent Nos.1-3; Ashutosh Kumbhakoni, Senior Advocate with Akshay Shinde for respondent No.4
R and B Infra Project Limited & Anr.
Mira Bhaindar Municipal Corporation & Ors.
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Nature of Litigation
Writ petition under Article 226 challenging tender process and award
Remedy Sought
Quashing of decision declaring respondent No.4 eligible and allotment of work
Filing Reason
Petitioners alleged that respondent No.4's technical bid was wrongly declared responsive based on invalid experience certificate and post-bid clarifications
Previous Decisions
Technical scrutiny committee on 12 December 2022 declared petitioners, respondent No.4, and another bidder qualified; respondent No.5 disqualified. Financial bids opened on 13 December 2022, respondent No.4 declared L-1. Petitioners' objections rejected. This Court on 21 December 2022 permitted amendment and directed further steps subject to petition.
Issues
Whether the technical bid of respondent No.4 was rightly declared responsive based on a Chartered Accountant's certificate and post-bid clarifications?
Whether the tender process was vitiated by allowing post-bid clarifications that amounted to submission of new documents?
Submissions/Arguments
Petitioners: The experience certificate must be from the awarding authority, not a Chartered Accountant. Post-bid clarifications are impermissible under Clause 31. The Chartered Accountant's certificate with UDIN was fraudulent as UDIN generated after certificate date.
Respondent No.4: The Chartered Accountant's certificate was a clarification allowed under Clause 31. The certificate was valid and submitted with UDIN later. The SPV structure is permissible.
Respondent No.1: The clarifications were sought and provided in writing. The tender committee accepted the bid after due consideration.
Ratio Decidendi
The court held that the tender condition required certification of successful execution of similar work by the authority that awarded the contract, not by a Chartered Accountant. The post-bid submission of a Chartered Accountant's certificate was not a valid clarification but a new document, violating Clause 31 and the principle of level playing field. Therefore, the decision to declare respondent No.4's bid responsive was arbitrary and liable to be set aside.
Judgment Excerpts
The certificate issued by the Ulhasnagar Municipal Corporation was in the name of Ms. Konark Enviro Project Pvt. Ltd. and did not certify the extent or value of the work completed in each of the five years from 2017-18 to...
Clause 31 of the tender document stipulated that any request for clarification regarding technical conditions had to be made in writing, with the original copy of the document providing technical clarification being submitted to respondent No. 1 in person.
The Chartered Accountant's certificate submitted post-bid was not a valid clarification but a new document, violating Clause 31 and the principle of level playing field.
Procedural History
Tender issued on 6 October 2022. Technical bids opened on 12 December 2022, respondent No.4 declared qualified. Financial bids opened on 13 December 2022, respondent No.4 declared L-1. Petitioners filed objections on 13 December 2022. Petition filed on 19 December 2022. On 20 December 2022, respondent No.2 accepted respondent No.4's bid. This Court on 21 December 2022 permitted amendment and directed further steps subject to petition. Affidavits filed by parties. Judgment reserved on 12 September 2024 and pronounced on 17 October 2024.
Acts & Sections
- Constitution of India: Article 226
