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2016 (4) TMI 223 - BOMBAY HIGH COURT

2016 (4) TMI 223 - BOMBAY HIGH COURT - TMI - Validity of public tender - Held that:- Given the nature of the equipment to be installed at such crucial places, and going by the nature of work and the prior experience condition that is reproduced by us hereinabove, we cannot accept the stand taken in para 8 that the tender does not require any previous experience of three years, or the denial that a previous requirement experience of 3 years was mentioned in earlier tender notice but was deleted f .....

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he estimated cost i.e. ₹ 3,38,67,804/-. It blames the petitioner for indulging in litigation, but we are not concerned here with the conduct of the petitioner, but the conduct of the State in a matter of public tender. We are aware of the principles laid down in the case of Michigan Rubber (India) Limited (2012 (3) TMI 512 - SUPREME COURT).

We are also aware that we cannot interfere with the tender conditions. We are interfering in this case simply because the respondent nos. 1 .....

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ts Executive Engineer (Electrical) are not serious in adhering to the terms and conditions of the tender. Given the nature of the work and the maintenance that is required, the State ought to choose the best and the most experienced in the field. Once the tender process does not meet the requirements of fairness and reasonableness, then there is no alternative for this Court but to interfere. If the State, or its instrumentality, acts reasonably and in public interest in awarding contracts, then .....

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ute in terms of prayer clause (b) to the extent that the work order in favour of 3rd respondent being vitiated as above, is quashed and set aside. - WRIT PETITION (L) NO. 330 OF 2016 - Dated:- 2-3-2016 - S. C. DHARMADHIKARI and G. S. PATEL, JJ. For The Petitioner : Mr. B. K. Barve with Mr. Sandeep Barve, Ms. Archana Lad and Ms. Sheetal Tanpure i/b. M/s. B. K. Barve and Co. For The Respondent : Mr. H. S. Venegaonkar - Additional Government Pleader, Mr. Naveen Ramakant Chomal ORAL JUDGMENT :- (Per .....

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e address mentioned in the cause title. The 1st respondent is the State of Maharashtra through the Principal Secretary, Department of Public Works and the 2nd respondent is the Chief Engineer (Electrical), Public Works Department (PWD). 4. The 3rd respondent placed a bid in pursuance of this etender and was awarded the contract. 5. The 4th respondent has been impleaded as party respondent on the footing that the equipment which was supplied by it to the 3rd respondent is not genuine and in the p .....

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appropriate class of the Public Works Department of Maharashtra State. The name of work, estimated cors, earnest money, security deposit, time limit for completion etc. are as under. E Tender No. Name of work Estimated Cost (Rupees) Earnest Money (Rupees) Security Deposit (Rupees) Class of Contractor Time limit in Tender (Calendar Months) Est. No.: SR/NVB/3005/o f 2015-16: (Revised) Providing Fully comprehensive maintenance & service contract for Audio Conference System at Assembly Hall, Cou .....

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ender form, conditions of contract, specifications and contract drawings were to be downloaded from the website of the PWD, Government of Maharashtra. The documents required inter alia were a scanned copy of statement II mentioning the quantum or magnitude of works done by the contractor during last three years in Government of Maharashtra, showing at least one work of supply and installation of audio video systems in prestigious buildings like Mantralaya/Legislative Assembly/Council Houses/ oth .....

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ilance Commission. In regard to this, he would submit that there is no necessity to keep any secrecy, for whatever is uploaded on the website of the PWD for this e-tender ought to be in public domain. None of the uploaded bids or tenders should be password protected. Elaborating his submissions, he would submit that even a competing bidder or a member of the public must be able to access the e-tender and the contents thereof. In the present case, the password protection given to respondent no. 3 .....

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, Council Hall and Central Hall at Navin Vidhan Bhavan . The earlier tender and which also resulted in a writ petition in this Court had crucial words, namely, digital audio conference system with voting, camera control and language interpretation system and which were to form part and parcel of the system to be installed at the Assembly Hall. Mr. Barve would submit that the Assembly Hall and Council Hall are the halls used when the assembly is in session and the Central Hall is used for other i .....

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ust work without disruption. The necessary continuity is guaranteed only when the class of contractor is the one notified in the e-tender notice. In the present case, the contractor should be a reputed original equipment manufacturer or its authorised dealer/system integrator with previous experience of satisfactorily installing and commissioning digital audio conference systems of not less than ₹ 111 lacs in any prestigious buildings of the Government of Maharashtra during the last three .....

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known to him, without even bothering to consider the bid of the petitioner, has certified the bid of the 3rd respondent as qualifying and complying. The petition points out that the petitioner got information that the 3rd respondent was registered and incorporated as a company, but which was much later than the period specified in the tender conditions for work experience. In such circumstances, Mr. Barve would submit that this being a public tender, the authorities were obliged to adhere to th .....

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these documents shows that respondent no. 3 is in business since 2009 but it was a partnership firm and it was only from 2013 that it is a private limited company. In support of that, the 3rd respondent has submitted the last three years income-tax returns. In dealing with para 5(d) of the petition, the Executive Engineer states that the tender does not contain any requirement of experience of three years and hence it is denied that the experience of three years was mentioned in the earlier ten .....

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orders and work completion certificates. For all these reasons, Mr. Barve submits the the impugned work order in favour of the 3rd respondent being contrary to the constitutional mandate, which is required to be adhered to in public tender, must be quashed and set aside. 12. Justifying the issuance of work order, Mr.Venegaonkar, learned Additional Government Pleader appearing for the State and the PWD through its Executive Engineer, invited our attention to the affidavit in reply of the State a .....

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all these reasons, he would submit that at the last minute, this Court should not intervene at the instance of an unsuccessful bidder, but should proceed to dismiss the petition. There is no violation of the constitutional mandate or the Central Vigilance Commission guidelines. 13. Mr. Chomal appearing for respondent no. 3 relies upon the affidavit of respondent no. 3 to submit that the 3rd respondent is technically proficient, and substantially experienced in the field of installation of audio .....

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dence to certify its experience and proficiency in the work that is required to be carried out in the Council Hall. The 3rd respondent, in the affidavit, states that he is a successful bidder in various Government contracts for the works similar to the nature of the present one and accordingly has been successfully maintaining the audio video conference system installed at the cabinet hall, Chief Minister s conference room, Deputy Chief Minister s conference room and the Chief Secretary s confer .....

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tender notice. Mr. Chomal, therefore, submits that bearing in mind the legal principles, this Court should not interfere in its writ jurisdiction with the decision of the State. Secondly only because another method could have been adopted and which is in this Court's opinion a better one, that will not enable this Court to interfere in writ jurisdiction. The process is fully transparent and is not vitiated by any unfairness, arbitrariness or malafides. 15. Reliance is placed by Mr. Chomal on .....

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to so also the affidavits placed on record. 17. In the writ petition, it is stated that respondent no. 2 has invited a bid. It is stated to be an e-tender numbered as SR/NVB/3005/2015-2016 dated 21st December, 2015. A copy of this is to be found at annexure 'E' page 54 of the paper book. The name of the work is providing fully comprehensive maintenance and service contract for audio conference system at Assembly Hall, Council Hall and Central Hall at Navin Vidhan Bhavan, Mumbai-32 . That .....

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e years. 18. Upon a query to Mr. Venegaonkar as to how it is that there is a clear and marked difference between the description of the work at page 49 of the paper book and that at page 55 in the subsequent e-tender, Mr. Venegaonkar, on instructions, states that page 55 shows the revised terms and conditions with regard to the very same nature of work and the absence of the words digital and voting camera control and language interpretation system are neither decisive nor conclusive. It is the .....

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by the State that the e-tender submitted by all bidders is accessible wholly to a rival or a competitor in this case. We do not, therefore, wish to pursue this matter any further. 20. Equally, in the light of clarification of Mr.Venegaonkar in respect of installation of inbuilt voting camera control and language interpretation system, we do not think that the authorities have changed the terms and conditions in order to favour a particular bidder. Therefore, the requirement is clear and the wor .....

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d by the public have a right to speak. They ought to be audible to the assembly and the Speaker of the house. Therefore, whatever be the make of the installations and whatever be the systems in place, their maintenance and service ought to be of high degree so that the system operates smoothly and without any disruption. It is for that reason that a public tender was floated. The bids were notified in e-form. Therefore, considering the class of contractor, its design for the above work at such v .....

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e, the bid need not be compliant insofar as this aspect is concerned. The two paragraphs in the affidavit in reply, on which Mr. Barve placed heavy reliance, make an interesting reading. We reproduce them for ready reference:- 7. In respect of the contention of the Petitioner, in respect of the experience of Respondent No. 3 is concerned, I have to state that the document at Exhibit - C relied upon by the Petitioner in support of this contention is the document of certificate of registration, in .....

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n of the Petitioner in respect of para No. 5(d) is concerned. I say that neither the tender mentions any experience of 3 years and hence it is denied that the experience of 3 years was mentioned in earlier Tender Notice and the same has been deleted from the present Tender Notice. Copies of both the Tender Notices are already annexed to the Petition. 22. Surprisingly, the same deponent in para 5 of the affidavit states that in respect of sourcing and eligibility of contractors, care has been tak .....

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rior experience condition that is reproduced by us hereinabove, we cannot accept the stand taken in para 8 that the tender does not require any previous experience of three years, or the denial that a previous requirement experience of 3 years was mentioned in earlier tender notice but was deleted from the present tender notice. The requirement of experience is very much mentioned in that column of even the present tender. 24. We inquired from Mr. Venegaonkar as to how respondent no. 3 complies .....

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pretation system for the Assembly and Council Hall. They convened a meeting in the office of the Chief Engineer at a pre-bid stage. The minutes of the pre-bid conference held in his office are annexed to the affidavit in reply. The chairperson of the meeting was the Chief Engineer (Electrical). He stated that clarifications were required only on some issues which were raised: firstly that the installed system is of equipment manufactured by multiple brands, one of which is Bosch; and secondly, t .....

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requisitie prior experience relevant to the work had to be of at least one work of maintenance of digital audio video system and not of installation and commissioning of only an audio video system, the chairperson again clarified that the tender condition will prevail, meaning thereby, there is a requirement of not only installation and commissioning an audio video system of the required mandatory sum, but there must be experience of at least one such work. Thus, we do not see anything on record .....

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where is basis. Then, in respect of whether regular maintenance was carried out or not, the chairperson clarified that the system has not been maintained since last six months. Then, the period of payment was an issue, which was sought to be clarified by stating that bills would be cleared as per availability of funds. 25. We have gone into such details for the simple reason that this is not the first time that this petitioner has approached this Court. We had a writ petition before this Court b .....

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page 44 of the paper book. That order records that the 1st and the 2nd respondent would withdraw their tender dated 11th august, 2015 and the work order, which was issued by the 2nd respondent dated 24th September, 2015. The Court clarified that it would be open for these respondents to issue a fresh tender notice setting out specific and clear terms, particularly with regard to the nature of the work and the sourcing thereof, the eligibility of the contractors etc. and the tender process would .....

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orating our reasons and after scanning the entire record. To be fair to the 3rd respondent, documents denoting its experience have also been carefully perused by us. They are to be found annexed to the affidavit of the State. On the strength of these documents, it is said that the respondent no. 3 possesses the necessary work experience. This is after stating on oath that there is no such requirement in the present tender. However, all the works that are mentioned in the statement of works would .....

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ent work experience. We also note that this very system that is the subject matter of the tender was maintained by the Petitioner itself till as late as July 2015. As the chairman of the pre-bid meeting noted, there has been no maintenance since. That only means that no contract was in place for such maintenance, and the last such contractor was the Petitioner. The 3rd Respondent s work experience, according to the statement of works shown to us does not indicate any installation and supply of s .....

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the present one and has been successfully maintaining the audio video conference system installed at the Cabinet Hall, Chief Minister Conference Room, Deputy Chief Minister Conference Room and the Chief Secretary Conference Room at Mantralaya. For the State to project this work as complete and as meeting the work experience requirement in the present tender and that too after taking a bold stand that such a criteria was not required to be fulfilled at all presents a misleading picture. The cabin .....

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enance and service for audio conference system of Assembly Hall, Council Hall and Central Hall at Navin Vidhan Bhavan is the subject of the present tender. The area to be covered in a dome like structure of great height is expansive and huge. The legislative assembly accommodates 288 elected members, Speaker and the support staff and sitting in extreme corners save and except the Hon'ble Speaker occupying the podium. The systems have to be extremely efficient and throughout in working condit .....

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and cultural events at which high dignitaries, including His Excellency the Hon'ble Governor of the State are present. Hence, when it comes to quality, durability etc., there cannot be any compromise with the evolved criteria and standards. These cannot be surrendered or sacrificed. For, there are visitors galleries and offices surrounding and encircling the main hall. Those inside have to be audible there as well for none of these are within the ordinary hearing distance. That is why we de .....

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tails of plant and machinery immediately available with the tenderer. None of the equipment and set out in table could be said to be sufficient for the present contract. Even the PWD does not feel it to be so. We are also not impressed with the financial returns, i.e., the account statement of the notes forming part of the balance-sheet as on 31st March, 2015. For the schedule of gross block assets, in the assets column as against intangible assets, software licence a sum is shown of ₹ 15, .....

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reply of the 3rd respondent would indicate that the works claimed as successfully carried out of the monetary sum and set out in the affidavit does not form part of the statements which were furnished or maintained by the State Government. In addition to the Chief Minister's cabin, Deputy Chief Minister's cabin and Chief Secretary's cabin, this affidavit projects the successful maintenance of audio video conference system installed at the Cabinet Hall, Chief Minister Conference Room .....

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ursuant to work order no. 3043 dated 25th July, 2014. The work completion certificate is issued on 22nd January, 2015. This, according to the 3rd respondent satisfies the criteria of work experience. We are unable to agree for, a cabin and cabinet hall cannot be compared with the Council Hall, Assembly Hall dome type structure. Government and secretarial building, even for a layman or a ordinary citizen and a building holding sessions of State assembly comprising of more than 300 members, suppor .....

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spondent had submitted a bid of 8.1% below the estimated cost i.e. ₹ 3,38,67,804/-. It blames the petitioner for indulging in litigation, but we are not concerned here with the conduct of the petitioner, but the conduct of the State in a matter of public tender. We are aware of the principles laid down in the case of Michigan Rubber (India) Limited (supra). We are also mindful of the fact that we are not experts. We are also aware that we cannot interfere with the tender conditions. We are .....

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