KIRLOSKAR BROTHERS LIMITED Vs. KALYAN DOMBIVLI MUNICIPAL CORPORATION EXECUTIVE ENGINEER WATER SUPPLY DEPARTMENT

JUDGEMENT

(1.) By this Writ Petition under Article 226 of the Constitution of India, the Petitioners in substance are questioning the legality and validity of the procedure followed by the Respondent Corporation in relation to the tender process pertaining to renewal, expansion and automization of the existing works at Barave and Titwala Water Treatment Plant in Kalyan - described as work No. 1 (hereinafter referred to as 'the said work'), of which estimated price is stated to be Rs. 20,52,08,234/-. Pursuant to the tender notice bearing No. 03/2009-2010, since the Petitioners fulfilled all the qualifications, they submitted their tender on 5th October 2009 in respect of work at Serial No. 1 of the said work. In all, four tenders were received for the said work before the expiry of the date and time for submission thereof including that of the Petitioners. The technical bid of all the four bidders were opened on-line on 7th October 2009. After scrutiny of the technical bids, it was found that the Petitioners and one SMC Infrastructure Pvt.Ltd. (hereinafter referred to as 'SMC') were the only bidders who were technically qualified. The bid submitted by the other two bidders M/s. R.B. Krishnani-Viraj (Joint Venture)-Respondent No. 4 herein and one S.N. Thakkar Construction Pvt.Ltd. were found to be lacking in qualification, for which reason, their bids were rejected. It was noticed that Respondent No. 4 had not submitted registration copy and experience certificate along with their tender. The Respondent No. 4, however, on 7th October 2009 submitted representation to the Commissioner to consider their case on the ground that although they had submitted their tender for the said work on 4th October 2009 through E-Tendering along with all documents such as bank guarantee and qualification certificates, but when the tenders were opened, the relevant documents were not visible on the web. Here it may be relevant to notice that the Respondents on affidavit filed in this Court have conceded that no supporting documents were uploaded on the website of the Corporation. In that sense, the stand taken by the Respondent No. 4 in the said representation dated 7th October, 2009 is belied. Be that as it may, the Respondent No. 4 asserts that their representative was present at the time of opening of tender and had volunteered to submit hard copy of bank guarantee for EMD but was not accepted. In this communication, the Respondent No. 4 also stated that their offer is 0.13% below the tender cost, for which reason, they should be awarded the contract.

(2.) When the commercial bids were opened, it was noticed that the Petitioners had quoted Rs. 22,47,03,016.23, whereas, the other qualified bidder-SMC quoted Rs. 24,62,49,880.80 as against the estimated tender price of Rs. 20,52,08,234. The Petitioners' bid was the lowest amongst the qualified bidders and therefore was declared to be the lowest bidder No. 1 (L-1). The second lowest bid was that of said SMC and was declared L-2. Accordingly, the Petitioners were invited for negotiations by the Respondent No. 1 vide letter dated 26th October 2010.

(3.) Although the bid submitted by Respondent No. 4 was rejected and was out of reckoning, yet they submitted letter dated 3rd December 2009 directly addressed to the Commissioner once again requesting to consider their offer and to allot them the said work. Along with this letter, it is stated that the Respondent No. 4 submitted hard copies of all the relevant documents which are found from Pages 215 to 157 of the original record of the Corporation. We shall presently advert to the said documents submitted by Respondent No. 4, which according to them indicated that the Respondent No. 4 possessed necessary qualification. Significantly, the Commissioner, purportedly on 10th December 2009, made noting on the said covering letter sent by the Respondent No. 4 to verify with the Consultant and then put up. The noting reads thus: <p><font face="Verdana">Mr. Juneja Verify with consultant and put up. <p>Sd/- 10/12