Ms Pallavi Constructions Engineers And Contractor vs. The Chief Engineer Ministry Of Road Transport And Highways And Others

Facts

M/s. Pallavi Constructions (Petitioner) filed a writ petition challenging the tender process initiated by the State of Maharashtra and the Ministry of Road Transport & Highways for a road improvement work estimated at Rs. 27.77 crore (excluding GST). The Petitioner alleged that Respondent No. 3, Dattatraya Contractors Pvt. Ltd., was disqualified due to non-compliance with mandatory conditions in the Request for Proposal (RFP), specifically regarding registration on the Bidder Information Management System (BIMS) and proper uploading of ongoing and completed projects to assess financial capacity. Despite these alleged flaws, Respondent No. 3 was declared the L-1 bidder. The Petitioner sought a declaration of Respondent No. 3's disqualification and a mandamus to proceed with the tender excluding them. The tender period was 18 months. Six bidders, including the Petitioner and Respondent No. 3, submitted proposals.

Held

The Court held that the Petitioner's initial objection regarding Respondent No. 3's failure to register on the BIMS portal and upload documents was factually incorrect, a concession also made by the Petitioner's counsel. Therefore, the necessity to examine this aspect was obviated. Furthermore, the condition regarding the BIMS portal was expressly relaxed by Respondent No. 2 because two other bidders had also not complied with it, and the Petitioner had not raised objections then. Regarding bid capacity, the Court noted that Respondent Nos. 1 and 2 substantiated Respondent No. 3's requisite bid capacity in their affidavits. However, the Court found that any inquiry into bid capacity would be academic and inconsequential because the Petitioner was the L-4 bidder. The L-2 and L-3 bidders, who would benefit if Respondent No. 3 were disqualified, were not parties to the petition. The Court also observed that the Petitioner had not attributed any mala fides to Respondent Nos. 1 and 2 and had filed the petition only after being found L-4, suggesting it was an afterthought. The Court reiterated the inherent limitations of judicial review in contractual matters, especially in the absence of allegations of mala fides and loss to the public exchequer, citing N.G. Projects Ltd. and Tata Motors Ltd. The petition was dismissed.

Key Issues

1. Whether the Respondent Nos. 1 and 2 committed an error in the technical evaluation of bids by not disqualifying Respondent No. 3 for non-compliance with mandatory RFP conditions, specifically concerning registration on the BIMS portal and uploading details of ongoing/completed projects as per clauses 2.2.2.7 and 2.14.1.2, thereby violating the principles of fair tender process? Petitioner's arguments: Registration on BIMS and uploading project details were essential, mandatory conditions. Non-compliance should have led to disqualification under clause 2.6. Respondent No. 3 suppressed material facts regarding its actual works in hand, exceeding Rs. 87.36 crore, which was not fully disclosed in the Chartered Accountant's certificate, contrary to clause 4.1. The RFP conditions were essential and should not have been ignored, especially concerning public money and public works, citing Meerut Development Authority and B.S.N. Joshi cases. Revenue/State's arguments: No error was committed in evaluating bids. While BIMS registration was stipulated, evaluation was manual. Four bidders, including Respondent No. 3, submitted on BIMS, but the condition was relaxed for all bidders, not just Respondent No. 3, to ensure more participants and save public money. Interpretation of clauses and relaxation decisions are within the employer's domain, absent mala fides, citing Jagdish Mandal. The Petitioner is L-4 and cannot challenge the L-1 bidder's qualification without impleading L-2 and L-3 bidders, citing Datta and Datta Associates.