M.E. Infraprojects Pvt. Ltd. and Ors. Vs. Municipal Corporation of Greater Mumbai and Ors. - (High Court of Bombay) (03 Sep 2018)

Requirement of bidder to furnish litigation history cannot be attributed to be an essential condition but merely ancillary or subsidiary to main tender conditions

MANU/MH/2548/2018

Commercial

The grievance of the Petitioners is in regard to the decision of the municipal Corporation as taken in the tender process, whereby, according to the Petitioners the municipal corporation has not strictly adhered to the tender condition appearing in the tender document. The short question which falls for consideration in present petition is as to whether the condition in question, providing that the bidder would be subject to be disqualified, if the bidder does not disclose the litigation history during the last five years, can at all be considered as an essential condition.

A plain reading of clause B therein, pertaining to the non-curable defects throws ample light on the fact that the requirement of the bidder to furnish litigation history cannot be attributed to be an essential condition but it is merely ancillary or subsidiary to the main tender conditions. Prescribing such a condition, calling upon a bidder to provide litigation history is aimed to enable the municipal corporation to take a decision on the acceptability of a tender/bid by examining issues prejudicial to the interest of the municipal corporation, in the context of the tender. There can be no other purpose for prescribing such a condition. It also cannot be countenanced, that by prescribing such a condition, the municipal corporation would expect a bidder to disclose litigation history which is totally non-germane and/or of no relevance to the tender.

The municipal corporation has rightly concluded that, the litigation/proceedings, which are pointed out by the Petitioners, not been disclosed by Respondent no. 9 on behalf of Respondent no. 8 to 10, have no relation to the tender in question or anything to do with the past performance, when the tender of Respondent nos. 8 to 10 was eligible technically and commercially, on all the other aspects of the tender conditions. The essential conditions of the tender are required to be strictly complied. The condition in question, of the bidder requiring to submit the litigation history for the past five years, is not an essential condition.

The Court would necessarily examine the decision making process to ascertain whether the process adopted or decision made by the authority is malafide or arbitrary and irrational or is such that no responsible authority acting reasonably and in accordance with relevant law could have reached, and whether the decision is against public interest. In Central Coalfields Limited, the Supreme Court referring to the decisions in Tata Cellular vs. Union of India and Jagdish Mandal vs. State of Orissa, held that, if an administrative decision, even a deviation in the terms of the notice inviting tender, if it is not arbitrary, irrational, unreasonable, malafide or biased the Courts will not judicially review the decision taken. Also the courts would not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation.

The decision of the municipal corporation in evaluating the tender of Respondent nos. 8 to 10, in the context of the tender condition providing for disclosure litigation history, cannot be said to be in any manner arbitrary and against public interest and/or violative of the Petitioners rights under Article 14 or 19(1)(g) of the Constitution. Petition rejected.

Relevant : Cellular vs. Union of India (1994) 6 SCC 164 and Jagdish Mandal vs. State of Orissa MANU/SC/0090/2007 Municipal Corporation, Ujjain and Ors. vs. BVG India Ltd. MANU/SC/0293/2018

Tags : TENDER EVALUATION VALIDITY