SABURI CONSTRUCTION COMPANY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard.

(2.) By the present petition, the petitioners had initially approached this Court on 06.09.2018 with a prayer that the financial bid submitted by the petitioner no.1 pursuant to the tender notice dated 18.06.2018 published for the purposes of construction of hostel building and training school be directed to be opened by the Superintending Engineer. After notice was issued in the writ petition, the Chief Engineer, Public Works Department (PWD) on 07.09.2018 informed the petitioners that the bid of the petitioner no.1 was rejected on technical grounds as the qualification CV was not found in the tender documents especially envelope no.1. By amending the writ petition, the petitioners have challenged that communication dated 07.09.2018 and have prayed that after setting aside that communication further orders for considering the financial bid of the petitioner no.1 be passed.

(3.) Shri M.P.Khajanchi, learned counsel for the petitioners submitted that rejection of the petitioners' bid was only with a view to oust the petitioner no.1 firm and to enable that work to be allotted to either respondent no.5 or respondent no.6. The ground for rejecting the bid was non-submission of the documents pertaining to the qualifications of the members of the petitioner no.1 firm and such information was not required to be mandatorily submitted. The Clause in that regard was not a material Clause on the basis of which the financial bid of the petitioner no.1 could not be opened. Referring to various Clauses in the tender notice and especially Clause 23.4.1 it was submitted that it was open for a bidder to clarify or modify his technical bid in case of any rectifiable defects. It was submitted that the petitioner no.1 had in fact on 06.08.2018 submitted the C.Vs which included the resume of the personnel who were to be deployed for the work in question. Placing reliance on the decisions in Rashmi Metaliks Limited and Another Vs. Kolkata Metropolitan Development Authority and others (2013) 10 SCC 95 and Khare and Tarkunde Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, 2015(3) Mh.L.J. 668 it was submitted that refusal to open a financial bid on this count amounted to treating a non-essential condition of the tender document to be an essential condition. It was incumbent upon the respondent nos. 1 to 4 to give a fair treatment to all bidders and the impugned communication refusing to open the financial bid resulted in causing prejudice to the petitioner no.1. He also referred to the decision in Maa Binda Express Carrier and Another Vs. North-East frontier Railway and others, (2014) 3 SCC 760 in that regard. It was thus submitted that even at this stage by directing the petitioners' financial bid to be opened, negotiations with the Authorities was permissible. There was also no reason to re-tender the work in question and hence the prayers made in the writ petition were liable to be granted.