AVP INFRASTRUCTURE, ENGINEERS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In view of notice for final disposal issued earlier, we have heard the learned counsel for the parties at length. The petitioner-Firm is aggrieved by the non-acceptance of its technical bid in the tender process initiated by the respondent no.2 for construction and restoration of pandhan road with structures in the submerged area of LWP at Sarkaspur and Deurwada. The reason for rejecting the tender bid of the petitioner is that the documents submitted by the petitioner were not found to be sufficient.

(2.) On 04/05/2021 the respondent No.2 issued tender notice inviting bids for various works including the work mentioned herein above. Clause 3/2/13 of the tender conditions stipulates that if the bidder does not upload "Geo-Tagging" in envelop No.1 the bid would be treated as non-responsive. It is the case of the petitioner that though condition 3/2/13 was duly complied with by it by uploading its "Geo-Tagging" in envelop No.1, its bid has been treated as non-responsive for the reason that the proforma as prescribed by Annexure-III was not put in the drop box at location No.1 as mentioned in the Special Conditions. Shri Anup Dhore, learned counsel for the petitioner submits that Clause-3/2/13 merely states that if the requisite "Geo-Tagging" is not uploaded, the bid would be treated as non-responsive. The consequence of not furnishing the prescribed proforma as per Annexure-III in the drop box to indicate the date and time of the visit was not mandatory as the tender conditions did not stipulate that failure to submit the prescribed proforma would entail rejection of the technical bid. The learned counsel invited attention to various clauses of the tender document and submitted that all mandatory requirements had been duly fulfilled by the petitioner except for submitting the proforma in Annexure- III. Placing reliance on the observations in paragraph 38 of the decision in Reliance Energy Ltd. And anr. vs. Maharashtra State Road Development Corporation Ltd. And ors. (2007) 8 SCC 1, it was submitted that the terms mentioned in the tender notice ought to be clear and if consequence of not complying with any condition was not stipulated, it would be obviously a condition that was not mandatory in nature for which the bid could not be treated to be non-responsive. It was further submitted that the respondent No.2 exercised leniency while considering the technical bid submitted by respondent Nos.5 to 7 but such leniency was not shown to the petitioner. On the aforesaid basis it was submitted that the decision of the respondent No.2 of treating the technical bid of the petitioner as non-responsive was liable to be set aside and its tender bid was liable to be accepted.

(3.) Shri P. B. Patil, learned counsel for the respondent No.2 countered the aforesaid submissions initially by referring to Government Resolution dtd. 08/04/2021 in which the necessity of submitting an Authority Letter and placing the same in the drop box had been made mandatory. The Special Condition at Serial No.83 was inserted in the tender document for that reason. Attention was invited to the Undertaking-5 that was required to be furnished by a bidder and as per clause-(d) the bidder was required to go through the entire tender document and unconditionally accept all terms and conditions. He referred to Annexure-III which was also part of the tender document and submitted that Special Condition No.83 made it mandatory for the contractor or his authorized representative to visit the site and geo-tag his visit at the predefined location as specified by the Engineer-In-Charge. It was thus obvious that it was mandatory for the contractor to visit the site and accordingly submit such proforma in Annexure-III in the drop box kept specially for that purpose. Inviting attention to a communication dtd. 07/07/2021 issued by the petitioner to the respondent No.3 it was submitted that as per said communication the petitioner claimed to have visited the site for geo-tagging but the drop box was not found on the site. It was asserted that infact the petitioner never visited the site in question between 17/05/2021 and 21/05/2021 which were the days assigned for such visit. Since Special Condition No.83, which was also part of the tender document was not fulfilled by the petitioner, the respondent No.2 was justified in treating the bid of the petitioner as non- responsive for failure to comply with the said mandatory condition. This aspect was clearly communicated to the petitioner on 12/07/2021 and therefore there was no substance in the challenge raised by the petitioner to the non-acceptance of his technical bid. The learned counsel relies on the decisions in AFCONS Infrastructure Limited vs. Nagpur Metro Railway Corporation Limited (2016) 16 SCC 818, A.U.W. Services vs. State of Maharashtra 2019 (6) Mh.L.J. 260, JSW Infra vs. Kakindas 2017 (4) SCC 170 and Electrical Contractors Association of Maharashtra, Mumbai vs. City and Industrial Development Corporation of Maharashtra 2019 (6) Mh.L.J. 130 and submitted that by incorrectly contending that the respondent Nos. 5 to 7 had not attached relevant documents but they had been found eligible, the petitioner had sought to make out a prima facie case on 19/07/2021 due to which an order of status-quo came to be passed. He submitted that the words "NA" meant "Not applicable" and not "Not attached" as was sought to be contended by the petitioner.