Bvg India Limited, Pune v. Municipal Corporation Ujjain And 3 Others.

Jarat Kumar Jain, J.:— THIS writ petition under Article 226 of the Constitution of India has been filed to quash the acceptance of tender and issuance of the work order in favour of Respondent No. 4 by UMC and for direction to accept the tender and issue work order to the petitioner.

2. The brief facts of this petition are that Respondent No. 1 - Ujjain Municipal Corporation (in brief “UMC”) had issued a Notice Inviting Tender No. 1068/2015 on 01.05.2015 for appointment of agency to carry out Municipal Solid Waste from door to door collection and its transportation for 10 years. The tender notice was for inviting online bids from the eligible bidders following Two Envelope System. The last date for submission of tender form was 21.05.2015. But by issuing Corrigendum, the dates for submitting tender online extended upto 01.06.2015 and for opening of technical bid 02.06.2015 and for financial bid 04.06.2015 were fixed.

3. The petitioner Company possess the required eligibility and work experience, therefore, company submitted the tender form as well as desired documents. Respondent No. 4 - Global Waste Management cell Pvt. Ltd. and Earth connect Transways have also submitted their tenders. On 02.06.2015, technical bids were opened and uploaded on the official website of the UMC, though the marks of the successful bidders were not disclosed.

4. All the three bidder including the petitioner company were qualified in technical bids. The financial bid was required to be opened on 04.06.2015, but the same was opened on 18.06.2015. The bid of petitioner was found to be lowest price. As per the method of evaluation prescribed in Clause 3.1.3 of the bids document, petitioner being lowest has to be declared as FL1 with full 20 marks. The UMC should upload on the website the technical and financial marks obtained by each qualified bidder, but the UMC has failed to upload the marks on the website. On 22.06.2015, the Petitioner company has submitted an application and prayed for disclosing of marks obtained by the bidders in evaluation process, but UMC has not disclosed the marks obtained by the bidders. On 23.06.2015, petitioner came to know that the work has been allotted to respondent No. 4. Then the petitioner has submitted an application under RTI Act, seeking all the documents which relates to the tender proceedings but the UMC has not supplied desired information. The procedure of awarding the tender to Respondent No. 4 is against the rule of transparency and fairness. In such circumstances, it is prayed that the tender opened and the work order issued in favour of Respondent No. 4 be quashed. The petitioner has fulfilled the qualifying criteria and quoted lowest rate. Hence, the petitioner be declared successful bidder and UMC be directed to issue work order in favour of the petitioner.

5. The stand of Respondent Nos. 1 and 2 are that the petitioner has suppressed the material facts. The basic object of NIT is to appoint an agency which could provide quality work with high level of technicalities and expertise rather than just depending on the lowest financial price, the eligibility parameters/criteria and method for evaluation of bid was based upon the marking system under various heads as mentioned in Article III of the NIT.

6. The experience certificates furnished by the petitioner were not as per the terms of NIT. Therefore, Respondent No. 3, while evaluating the technical proposal has not considered such certificates and has mentioned the reasons in his explanatory note.

7. The petitioner has concealed that Bangalore Bruhat Bengaluru Mahanagarpalika (in brief BBMP), Bangalore project is in serious trouble and the corporation had issued 73 notices to the petitioner. The petitioner has given information only about the litigation with Barshi Nagar Parishad but no details were disclosed. It is also suppressed that, on 19.03.2015 the District Panchayat of Dadar and Nagar Haveli, UT SILVASSA have issued a show-cause notice to the petitioner.

8. After the opening of technical bids UMC called technical adviser Respondent No. 3 to evaluate the tenders technically. On 06.06.2015 the respondent No. 3 gave detailed technical report (Annexure R-1/1) of the bids. After technical evaluations, the marks of financial bids were added and Respondent No. 3, by its letter dated 18.06.2015, submitted the final result of all the eligible tenderers with their marks and concluded the Respondent No. 4 to be the L1. Thereafter the final results were placed before the Mayor-in-Council for its approval which by its resolution dated 22.06.2015 directed to call upon Respondent No. 4 being L1 for negotiation in respect of the financial bid. In the negotiations the Respondent No. 4 agreed to work @ Rs. 1,451/- per MT. On 24.06.2015 the Letter of Intent and on 29.06.2015 the work order has been issued in favour of Respondent No. 4. On 25.06.2015 the UMC has entered into the concession agreement with the Respondent No. 4. The Respondent No. 4 has already mobilized its resources and has submitted the performance security amounting to Rs. 1,36,00,000/- in form of a Bank Guarantee and has already commissioned the work.

9. The petition is also liable to be dismissed on the ground of delay and latches as the resolution for awarding the work, was passed on 22.06.2015 and LOI was issued on 24.06.2015; whereas the petition was filed on 13.07.2015. The application under the provisions of RTI Act has been dismissed as the petitioner has sought certain documents which could not have been provided without the consent of the respective bidders and other information was in the form of questionnaire. The UMC has adopted the transparent and fair manner as prescribed in the NIT.

10. The Respondent No. 3, who is the Project Consultant and Technical Adviser of the UMC, in his reply stated that Respondent is providing technical consultancy and advisory services to various Municipal Corporations all over India, State Governments and Nodal Agencies. The Respondent No. 3 has considered all the documents and certificates submitted by the tenderer and followed the procedure for technical eligibility, evaluation of all the participants in the tender process. The eligibility parameters for the participants in NIT are prescribed in Article III of the NIT. The Respondent has carried out its obligation of evaluation of tenders with due care and scrutiny of submitted documents in the best possible ethical manner free of biasness or favouritism. There is clear marking as Technical L1, L2, L3 bidders as well as critical observations regarding tender submissions by each of them. The respondent has also prepared an explanatory note regarding marks for technical eligibility in respect of each bidder. Thereafter, the financial bid was opened on 16.06.2015 and final results were communicated by UMC. A copy of final scores dated 18.06.2015 is Annexure R-3/4. A bare perusal shows that the Respondent No. 4 stood L1 after overall rating as per the terms of NIT.

11. The Respondent No. 4 in reply pleaded that Respondent Company is an expert in the field of door to door collection and transportation of solid waste. After due evaluation on both technical and financial account the Respondent No. 4 was declared as L1 and accordingly the tender has been awarded to Respondent No. 4. On 24.06.2015, LOI has been issued and on 25/06/2015, Respondent has entered into the concession agreement with UMC and on 29.06.2015 the work order has been issued in favour of Respondent No. 4. The respondent has furnished performance security and the work has already been commenced. The Respondent has taken on lease a plot for establishing a work shop and also taken vehicles on lease for initiation of the project work. The Respondent has successfully worked with Surat Municipal Corporation and is also working with the Municipal Corporation of Greater Mumbai since 30.07.2010. The petitioner has made false, vague and baseless allegations in the petition.

12. In rejoinder, the petitioner pleaded that, Respondent No. 3 (technical expert) has deliberately not considered the certificate of Pimpri Chinchwad Municipal Corporation (in brief PCMC) on the flimsy and invalid grounds. Expert has awarded less marks using the document i.e. notices of BBMP Bengaluru and notices of Panchayat of Dadar and Nagar Haveli which were not supplied by the UMC. Whereas, considered the certificates of Respondent No. 4 which are not genuine and a certificate of Mira Bhayander Municipal Corporation (in brief MBMC) which was not in existence on the last date of submission of tender. Respondent No. 3 (Technical Consultant) by applying some arbitrary weightage factor which is nowhere mentioned in the NIT, has allotted marks.

13. Respondent No. 3 has evaluated the technical bid with biased intentions to favour Respondent No. 4 and allotted technical marks lower than legitimate to the petitioner. It would have been logical and transparent to upload technical marks of all the bidders online before opening the financial bid; whereas respondents have chosen to open the financial bid first and when they came to know that petitioner's bid was much lower than the bid of respondent No. 4, then Respondent No. 3 with biased intentions, adjusted the technical marks of bidders so as to concoct Respondent No. 4 as a successful bidder. The Respondent No. 1 has dubiously negotiated with Respondent No. 4 without calling the petitioner and consciously reduced the original rate quoted by the Respondent No. 4 - Rs. 1,710-00 per MT to Rs. 1,451-00 per MT, just Rs. 3-00 per MT below as quoted by the petitioner to pretense that the move taken by them is not against the interest of public exchequer. The statement that Respondent No. 4 has mobilized its resources, is false and misleading. As per the NIT and tenders for procurement of the required machinery is separately published by UMC. Thus, the machinery would be available for the project not before 10 of November, 2015.

14. Respondent No. 1 & 2 pleaded in reply to the rejoinder that the allegations made by the petitioner are baseless and unfounded. As soon as the technical evaluation of all the Tenderers received, the financial bids were opened, UMC was only required to give a tentative date for opening the financial bid and the same was duly informed on telephone to representatives of all the bidders. Hence, the methodology of calculations of scores has been carried out as per Article-III of NIT. After declaration of Respondent No. 4 as L1, Respondent No. 4 was called for negotiations to lower down its rate to which they agreed and the same was recorded in the resolution passed by MIC as per Clause 2.5 of Article IV of NIT. Then the work order has been issued in favour of respondent No. 4. Now, after execution of the agreement with respondent No. 4 an implementation of the work order, the petition has been rendered infructuous.

15. Respondent No. 3 pleaded in reply to rejoinder that the work order of PCMC, Chinchwad, is in Marathi language and the said certificate was issued to M/s. BVG Kshitij Waste Management Pvt. Ltd., which is not the petitioner. The work awarded to the petitioner by BBMP, Bangalore has been terminated for the non-performance of the project. Thereof taken into consideration, the petitioner was awarded 10 Marks only. The petitioner has carried out work at BBMP, Bangalore and City and Industrial Development Corporation of Maharashtra Ltd. (in brief CIDCO) for 28 months only, which is less than the requirement of three years. Accordingly, on pro-rate basis, marks were awarded to the petitioner. Respondent No. 4 has submitted three certificates, one of Surat and two of Mumbai work. The certificate dated 01/07/2014, clearly shows that the work order was issued on 14/06/2012 and Respondent No. 4 started work on 15/06/2012, prior to the resolution of Standing Committee and the same is not contrary to the terms of NIT. Thus, Respondent No. 4 was awarded full marks for work experience. The certificate dated 16/07/2015, issued by MBMC was not submitted by Respondent No. 4 with NIT, but the same was submitted along with reply of this petition. The methodology to award marks was completely based upon the past performance of the tenderer. The allegations made by the petitioner against Respondent No. 3 being biased or having been favoured are vague and baseless. Respondent No. 3 has awarded marks in fair and just manner to all the tenderers.

16. In reply to rejoinder, submitted by Respondent No. 4, it is pleaded that UMC with the assistance of Respondent No. 3, scrutinized and verified the documents, submitted by all the bidders and awarded marks after due evaluation, as per prescribed procedure in NIT. The certificate issued by Meera Bhayandar Municipal Corporation (MBMC) was submitted by Respondent No. 4 with its reply to the petition, which is updated certificate and which was not submitted in NIT and the certificate submitted by Respondent No. 4 was another one, which can be verified from the respective Municipal Corporation.

17. The tender process has been challenged on the ground that respondent No. 3, who is a technical expert, has evaluated the technical and financial bid with biased intention to favour Respondent No. 4 and the role of UMC was also not transparent and fair.

18. The technical evaluation report R-1/1 and financial evaluation reports are challenged on the following grounds:—

(a) Certificate (PCMC) of the petitioner was not considered for awarding marks in technical evaluation.

(b) Expert has awarded less marks using the documents (notices of BBMP, Bangalore and notice of Panchayat of Dadar and Nagar Haweli) against the petitioner, which were not supplied by the UMC.

(c) Expert has awarded marks on certificate of MBMC submitted by Respondent No. 4 which was not in existence when technical evaluation sheet was prepared.

(d) The expert has considered certificates of Respondent No. 4 which are not genuine.

(e) The expert has changed the methodology of evaluation of technical as well as financial bids.

19. The role of UMC was not fair and transparent, which is demonstrated on following grounds:—

(a) Technical bid was opened on 02/06/2015, but deliberately marks were not disclosed.

(b) Technical expert's report received on 06/06/2015; whereas financial bid was opened after 12 days on 18/06/2015 without intimation to the petitioner.

(c) The marks of technical bid were not disclosed with a view to manipulate the marks in the light of financial bid.

(d) There is no provision in NIT for negotiation after declaration of financial bid. However, UMC negotiated with respondent No. 4 and Respondent No. 4 reduced the rate just Rs. 3/- per MT below as quoted by the petitioner, to show bona fide.

(e) UMC has declined to supply the copy of documents submitted by respondent No. 4 and marks secured in technical and financial bid by all the bidders.

(f) UMC in hasty manner issued LOI on 24.06.2015 and on the same day, respondent No. 4 submitted Bank guarantee of Rs. 1,36,00,000/- and on the next day UMC entered into an agreement and on 29.06.2015 issued a work order to respondent No. 4.

20. Respondent No. 3 has prepared a technical evaluation report R-1/1 which is as under:—

Evaluation for Technical Eligibility-Summary Sheet

Sr. No. Eligibility Criteria measurement units and marks Assignable Marks Marks obtained by Tenderers Global Waste BVG India Earth Connect 1 Tenderer's Registration status (min. 5 yrs) Min.5 yrs 6-9 yrs. >10 yrs 5 7 10 10 10 5 2 Experience and Expertise No. of years in msw proj (min.3 yrs) up to 3 years 3.1 to 5.0 years > 5.1 years 5 7 10 10 5 10 3 MSW Qty handled for collection transportation (min 200 TPD) Min.200 MT/day 201 to 500 MT/day > 501 MT/day 5 10 15 15 15 15 4 MSW Qty handled for Door to Door Collection (Min.100 TPD) upto 100 MT/day 101 to 300 MT/day > 301 MT/day 5 10 15 10 10 5 5 Ownership or O&M of C&T system for MSW MT/day upto 200 201-500 > 501 5 10 15 15 15 15 6 Your responsiveness to tender and submissions Average Good Very Good 5 10 15 10 5 10 7 Your capability factor, quality of presentation and innovativeness Average Good Very Good 5 10 15 10 10 5 Total 95 80 70 65 On 100 Marks basis % 84.21 73.68 68.42 After Weightage factor of 80% 67.36 58.94 54.73 Remarks Whether Qualified or Not Qualified Qualified Qualified

21. The technical expert has explained as to why he has not considered the Certificate of PCMC which reads as under:—

“Note: PMC's project is in the name of BVG Kshitij Waste Management Pvt. Ltd. No linkages established with the Tenderer through MOU/JV/Consourtium etc. Also there are discrepancies in work orders. No quantity is mentioned. Dates are Ambiguous with overwritings. Translation are different than original language. Hence, this project is non-considerable.”

22. In this regard we have considered the submissions made on behalf of the learned Counsel for the parties. As per the Counsel for the petitioner, the technical expert has deliberately not considered the Certificate; whereas learned Counsel for the respondents supports the reasons mentioned in the explanatory note.

23. To appreciate the rival contentions of the learned Counsel for the parties it is useful to refer the Certificate of PCMC which reads as under:—

TO WHOMSOEVER IT MAY CONCERN

24. This is to certify that, M/S. BVG KSHITIJ WASTE MANAGEMENT SERVICES PVT. LTD., Address:- BVG House, Premier Plaza, Old Pune Mumbai Road, Chinchwad, Pune - 411 019, has been awarded the work of “Selection of Private Operator for Door to Door Collection, Segregation and Transportation of MSW to MSW Depot at Moshi on PPP Basis [B & C Prabhag (Old)].

Details of contract are as follows:—

1) Scope of work:- “Selection of Private Operator for Door to Door Collection, Segregation and Transportation of MSW to MSW Depot at Moshi on PPP Basis (B & C Prabhag (Old)].

2) Date of Commencement of work:- 05/01/2012

3) Date of Completion:- Work in progress

4) Collection and transportation of garbage (Primary and secondary waste collection):- 335 M.T. Per day (Door to Door Collection)

5) Population:- 8 Lakh (Approx.)

This is also to certify that they handle, operate, repair and maintain 14 refuse compactors of 18 cubic meter capacity and 145 Tata Ace Vehicle from 05/01/2012 which are owned by this Corporation.

The Certificate is issued on request by M/S. BVG KSHITIJ WASTE MANAGEMENT SERVICES PVT. LTD., vide their letter dt.21/4/2015.

25. From bare reading of the above Certificate of PCMC it is clear that the project is of joint venture. In the tender document at Sr. No. 9 of eligibility criteria it is mentioned that joint venture or consortium is allowed for maximum two parties. Hon'ble Apex Court in the case of Ganpati RV - Talleres Alegria Track Pvt. Ltd. v. Union of India reported in (2009) 1 SCC 589 held that a Certificate issued in the name of joint venture should be considered for experience; whereas the expert has not considered this Certificate. If expert has any doubt then he should have clarified the same from the petitioner but he has outright rejected this Certificate.

26. In the PCMC Certificate the quantity of door to door collection and transportation of garbage is mentioned 335 MT per day, however, technical expert has not considered this Certificate on the ground that the work order is in Marathi language and quantity is not mentioned and there is ambiguity in the dates. The explanation is not convincing as the Certificate is in English language and quantity of per day collection is mentioned and there is no ambiguity in regard to date of issuance of Certificate. Respondent No. 3 has not shown any other reason in reply of petition except the reason mentioned in the explanatory note.

27. The technical expert has not considered the certificate of PCMC. This project is commenced from 05.01.2012. Thus, on 31.03.2015 (cut off date shown in eligibility criteria), this project has completed more than 3 years. Thus, the petitioner is entitled for 7 marks for experience and expertise; whereas technical expert awarded 5 marks.

28. Technical expert in above referred summary-sheet awarded 10 marks to petitioner in Clause-4 for MSW qty. handled for door to door collection with the following explanatory note:—

iv) Experience of Door to Door Collection. Min. 100 TPD CIDCO's project is not for Door to Door collection.

The Tenderer is in serious trouble with BBMP Bangalore, where contract packages have been brought down from 52 to 17 and now from 17 to just half.

After facing 73 notices (wef 13 Feb 2013 to 21 Jan 2015), leading to cancellation of work, the tender will be left with less than 300 MT/day quantity.

Hence qualifies for the range 101 to 300 TPD = 10 marks.

29. Technical expert has not considered the Certificate of petitioner in respect of CIDCO project on the ground that it is not for door to door collection. From the certificate referred in para 19, it is apparent that project of CIDCO is for collection, transfer and transportation of MSW from CIDCO Nodle Area and the Certificate of BBMP has also not considered in right prospects but the expert has considered with a bias mind that petitioner is facing 73 notices from the Corporation. As we discussed above, the certificate of PCMC is for door to door collection of MSW and quantity for per day collection is 335 MT (certificate is in para 16). But this Certificate has deliberately not considered by the technical expert. If this Certificate would have been considered then certainly the petitioner is entitled for 15 marks in Clause-4; whereas technical expert has awarded 10 marks.

30. In above referred summary-sheet technical expert awarded 5 marks for responsiveness to tender and submission with a following explanatory note:—

(vi) Responsiveness to tender and submissions: The tender submission of M/s. BVG India is very poor. Leaving many annexures unfilled up and referring as “information given separately”. Not filling up even statutory and financial information in the prescribed formats. Suppression of information regarding litigations (Annexure-13) and track record of performance (Annexure 12) casualness in description of approach and methodology. In view of the above the tender gets marks for average category i.e. 5 marks.

31. From the above explanatory note it is apparent that on the basis of the vague and general remarks the technical expert has awarded 5 marks to the petitioner. It is pertinent to note that in the reply of the petition it is not disclosed that which information has not been supplied by the petitioner. Even in the argument UMC and the respondent No. 3 has not pointed out the default committed by the petitioner. In the above note, it is mentioned that petitioner has suppressed information regarding litigation and track record in Annexure 12 & 13. In reply to petition, it is stated that the petitioner has not disclosed the fact that he has received 73 notices from PCMC. If any contractor receives the notices, it would not be termed as litigation. Therefore, the observation of the Respondent No. 3 that petitioner has suppressed information regarding litigation and track record of performance is not correct. In such circumstances, the technical expert is unable to justify awarding less marks in Clause-6.

32. It is contended on behalf of the petitioner that technical expert/Respondent No. 3 has considered 73 Notices, issued by Bangalore Corporation and the notices issued by District Panchayat Dadar and Nagar Haveli, UT Silvassa. In reply to the petition, respondent No. 3 has not stated that these notices were supplied to him by UMC. Thus, Respondent No. 3 has considered the documents, which were in his knowledge and he has used it without seeking permission from UMC and asking for any explanation from the petitioner.

33. Technical expert in above summary-sheet in Clause-3 - MSW Qty. handled for collection transportation (minimum 200 TPD) awarded 15 marks. Considering the Certificate issued by Mira Bhayandar (Annexure R-4/6), expert has awarded marks for experience and collection of transportation as evident from the technical eligibility evaluation of Respondent No. 4. This Certificate has been issued on 16.07.2015; whereas the technical expert has prepared technical evaluation report on 06.06.2015. On that date this Certificate was not in existence. However, Respondent No. 4 contended that such certificate was not considered by the expert. For this purpose, it is useful to refer the criteria of awarding marks to Respondent No. 4 for experience of collection and transportation.

“III. Experience of Collection & Transportation (Min. 200 MT/day)

Co. has experience of 255 MT/day in Surat

755 MT/day in Mumbai

359 MT/day in Mumbai II

351 MT/day in Ahmedabad

423 MT/day in Mira-Bhayandar

Qualities for Full Marks i.e. >501 MT/day.”

34. With the aforesaid it is apparent that if Respondent No.3/technical expert has honestly and fairly considered the certificates, then the petitioner should have awarded the marks shown in the following chart and the marks awarded are shown in “Bracket”:—

Evaluation for technical eligibility - Summary sheet

Sr. No. Eligibility Criteria measurement units and marks Assignable Marks Marks obtained by Tenderers Global Waste BVG India Earth Connect 1 Tenderer's Registration status (min. 5 yrs) Min.5 yrs 6-9 yrs. >10 yrs 5 7 10 10 10 5 2 Experience and Expertise No. of years in msw proj (min.3 yrs) up to 3 years 3.1 to 5.0 years > 5.1 years 5 7 10 10 7 (5) 10 3 MSW Qty handled for collection transportation (min 200 TPD) Min.200 MT/day 201 to 500 MT/day > 501 MT/day 5 10 15 15 15 15 4 MSW Qty handled for Door to Door Collection (Min.100 TPD) upto 100 MT/day 101 to 300 MT/day > 301 MT/day 5 10 15 10 15 (10) 5 5 Ownership or O&M of C&T system for MSW MT/day upto 200 201-500 > 501 5 10 15 15 15 15 6 Your responsiveness to tender and submissions Average Good Very Good 5 10 15 10 10 (5) 10 7 Your capability factor, quality of presentation and innovativeness Average Good Very Good 5 10 15 10 10 5 Total 95 80 82 65 On 100 Marks basis % 84.21 86.31 68.42 After Weightage factor of 80% 67.36 69.05 54.73 Remarks Whether Qualified or Not Qualified Qualified Qualified

35. Now, we have considered that whether the technical expert-Respondent No. 3 has changed the methodology of evaluation? For this purpose, it is useful to refer the condition of tender, which is as under:—

3.1.1 Method of evaluation of work awarded:

The tenderers will be evaluated for technical eligibility as per above parameters. Financial bid of all those, who get minimum 60% marks will be opened and assign the score with the weightage factor.

In the financial bid, party quoting lowest C & T charges shall be treated as FL1 with 20 Marks (full).

Other parties will get Financial score as: F L1 FL2/FL3/FL4 etc.

3.1.4D eclaration of successful bidders

Party who secures maximum score of technical + Financial bid will be declared L1 and called for award of tender. In case, this party fails to respond in the given time limit, then the next L2 party will be called and so on.

36. Respondent No. 3 in his report dated 06.06.2015 has changed the methodology for bid evaluation and adopted its own formula without consultation with UMC, which is as under:—

“All above works demand high level of technicalities and expertise rather than just depending on lowest financial price, quoted for a material transportation.

37. Adopting this methodology, Respondent No. 3 has prepared following report:—

Financial Scores

Sr. No. Tenderer Price quote as Rs/MT of MSW Financial Score Rating 1 M/s. Global Waste Management Cell Pvt. Ltd. Mumbai 1710.00 17.00 FL-2 2 M/s. BVG India Ltd. Pimpri-Chinchwad 1454.00 20.00 FL-1 3 M/s. Earth Connect Transway Pvt. Ltd. Ujjain 1978.00 14.67 Fl-3

Combined Technical plus Financial Score

Sr. No. Tenderer Technical Score Financial Score Overall score Rating 1 M/s. Global Waste Management Cell Pvt. Ltd. Mumbai 67.36 17.00 84.36 L1 2 M/s. BVG India Ltd. Pimpri-Chinchwad 58.94 20.00 78.94 L2 3 M/s. Earth Connect Transway Pvt. Ltd. Ujjain in consortium with Bhumika Transport Mumbai 54.73 14.70 69.43 L3

38. It is contended that the Expert has changed the methodology of evaluation of technical as well as financial bid. As per NIT Clause 3.3, the method of evaluation and work award, the financial bid, the party quoting lowest C & T charges shall be treated as FL1 with 20 marks full. Other party will get financial score as FL1/FL2/FL3/FL4 etc. With this formula, petitioner's financial bid is lowest and, therefore, he is entitled for FL1 and the respondent No. 4 quoted 1710 per MT and Earth Connect Company quoted 1978 per MT. Thus, they are entitled for 0.85 and 0.73 marks respectively, whereas the respondent No. 3 has awarded 17 marks to respondent No. 4 and 14.70 marks to Earth Connect Company. Thus, the respondent No. 3 has changed the methodology of evaluation.

39. If the technical expert has fairly evaluated the technical as well as financial bid, then the petitioner company is able to be declared as L1. The evaluation sheet is as under:—

Financial Scores

Sr. No. Tenderer Price quote as Rs/MT of MSW Financial Score Rating 1 M/s. Global Waste Management Cell Pvt. Ltd. Mumbai 1710.00 0.85 FL-2 2 M/s. BVG India Ltd. Pimpri-Chinchwad 1454.00 20.00 FL-1 3 M/s. Earth Connect Transway Pvt. Ltd. Ujjain 1978.00 0.73 FL-3

Combined Technical plus Financial Score

Sr. No. Tenderer Technical Score Financial Score Overall score Rating 1 M/s. Global Waste Management Cell Pvt. Ltd. Mumbai 67.36 0.85 68.21 L2 2 M/s. BVG India Ltd. Pimpri-Chinchwad 69.05 20.00 89.05 L1 3 M/s. Earth Connect Transway Pvt. Ltd. Ujjain in consortium with Bhumika Transport Mumbai 54.73 0.73 55.46 L3

40. It is apparent from the above chart that, petitioner company is the highest scorer. Therefore, the petitioner should have been declared L1 and called for award of work.

41. Now, we have considered the allegations made against the UMC during tender process and awarding tender to Respondent No. 4. It is contended on behalf of the petitioner that technical bid was opened on 02.06.2015 but deliberately marks were not disclosed on website of each bidder. In this regard, UMC's reply is silent.

42. It is contended on behalf of the petitioner that technical expert's report on technical evaluation was received on 06.06.2015; whereas financial bid was opened after 12 days i.e. on 18.06.2015, without intimation to the petitioner. In this regard, UMC in reply of return has not explained as to why this delay has been occurred. However, it is stated that the date of opening of financial bid has been communicated telephonically to the bidders. We think that, this is not the proper mode of communication. It should have been communicated by E-mail to the bidders, but UMC has not adopted this mode. Therefore, the explanation is not convincing.

43. There is no provision in the NIT for negotiation after declaration of financial bid. From the facts it can be easily inferred that Respondent No. 4 has quoted 1710.00/MT; whereas petitioner has quoted 1454/MT. To justify awarding tender to Respondent No. 4, after negotiation, Respondent No. 4 reduced the rate 1451/MT. Just 3 Rupees below the rate quoted by the petitioner.

44. It is also contended on behalf of the petitioner that petitioner has filed an application under RTI for supplying the copy of documents submitted by Respondent No. 4 and the marks secured in technical and financial bid by all the bidders but UMC has rejected the application and declined to supply the information to the petitioner.

45. On 24.05.2015, UMC has issued LOI and on 25.06.2015, UMC has entered into the concession agreement with Respondent No. 4 and on the same date, Respondent No. 4 has submitted performance security amounting to Rs. 1,36,000,00/- in the form of bank guarantee. This fact indicates that the bank guarantee was ready even before entering into an agreement.

46. With the aforesaid facts, it reveals that UMC is also interested in awarding the contract to Respondent No. 4.

47. In the present case, the petitioner has made serious allegations against the Respondent No. 3/Technical Expert that he was biased while evaluating the technical as well as financial bid. Test for and the manner in which issue of bias to be adjudicated is propounded in the recent judgement by Hon'ble apex Court in the case of Union of India v. Sanjay Jethi [(2013) 16 SCC 116]. In this case Hon'ble Court held as under:—

“The principle that can be culled out from the number of authorities fundamentally is that the question of bias would arise depending on the facts and circumstances of the case. It cannot be an imaginary one or come into existence by an individual's perception based on figment of imagination. While dealing with the plea of bias advanced by the delinquent officer or an accused a court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coram non judice. One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the attractability of plea of bias a tribunal or a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one's individual perception or misguided intuition.”

48. Keeping in view the principles laid down by the Apex Court, we dealt with the plea of bias, the case at hand is to be appreciated in its factual backdrop, whether there has been “really likelihood of bias”.

49. Respondent No. 3-Technical Expert while evaluating the technical bid has not considered the certificate of PCMC on the ground that this certificate is not related to the petitioner company; whereas from bare reading of this certificate, it is clear that the certificate is in regard to joint venture of the petitioner company. If the Respondent No. 3 has any confusion, he can seek clarification from the UMC or petitioner instead of he has outright rejected the certificate. As we discussed above, the expert has used notices of BBMP, Bangalore and notice of Panchayat of Dadar and Nagar Haweli against the petitioner, which were not supplied to the UMC. Expert has awarded marks on certificate of Meera Bhayandar Municipal Corporation (MBMC) to Respondent No. 4. However, this certificate was not in existence when the technical evaluation sheet was prepared. As we discussed above in para 26 of this order that if the technical expert has honestly and fairly considered the certificates of the petitioner, then the petitioner would be entitled to get highest marks in technical bid i.e. 82 marks, however, Respondent No. 3 has deliberately awarded less marks i.e. 70 as shown in para 13 of this order. Besides this, while evaluating the financial bid, the technical expert has changed the methodology of evaluation and arbitrarily awarded 17 marks to Respondent No. 4; whereas he is entitled for 0.85 Marks. If the technical expert has fairly evaluated the technical as well as financial bid then the petitioner company should be declared as L-1 as shown in para No. 30 of this order. Technical Expert in his reply and the rejoinder to reply has failed to explain as to why he has not considered the certificate of PCMC and used the documents which were not supplied to him by the UMC? Technical expert has also unable to convince that how he has changed the methodology of evaluation of financial bid and adopted his own method of evaluation that he has keep in mind demand of high level of technicalities and expertise rather than just depending on lowest financial price quoted for a material transport. From these facts, there is a reasonable apprehension based on cogent material that the Respondent No. 3 was biased while evaluating the technical as well as financial bid and Respondent No. 3 has evaluated the bids to favour Respondent No. 4.

50. Now we have considered the role of the UMC which is also challenged in the petition. Admittedly the technical bid was opened on 02.06.2015 but marks awarded to each bidders were not disclosed. Technical Expert's report received on 06.06.2015; whereas financial bid was opened after 12 days i.e. on 18.06.2015 without intimation to the bidders. However, in the reply it is mentioned that UMC has informed on telephone the date of opening of financial bid to the bidders. Such mode of communication was not prescribed in the tender notice. There is no provision in NIT for negotiation after declaration of financial bid. However, UMC negotiated with Respondent No. 4 and Respondent No. 4 reduced the rate just Rs. 3.00 per MT below as quoted by the petitioner to show bona-fide. UMC has declined to supply the copy of documents submitted by Respondent No. 4 and marks secured in technical and financial bid by all the bidders. It is also pertinent to note that LOI issued on 24.06.2015 along with a format for submitting bank guarantee and on the same day, Respondent No. 4 has submitted a bank guarantee of huge amount of Rs. 1,36,00,000-00 and next day UMC entered into an agreement and on 29.06.2015 issued work order to Respondent No. 4. From these facts it can easily be inferred that UMC is interested in awarding the contract to Respondent No. 4.

51. We are conscious of the fact that scope of judicial review and the interference by superior Courts in the award of contracts is limited as held by Hon'ble apex Court in the case of Siemens Public Communication Nerworks v. Union of India [2008 (14) SCALE 513]. It is held that scope of judicial review and the interference by superior Courts in the award of contracts is limited if two views are possible and no mala-fides or arbitrariness is alleged or shown, there is no scope for interference with the view taken by the authorities inviting tenders. In the present case, petitioner has shown mala-fides and arbitrariness on the part of Respondent Nos. 1, 2 and 3. Hence, there is necessity of interference in the present case.

52. Learned counsel for the Respondent Nos. 1 and 2 submits that the object and purpose is achieved by substantial compliance of terms and conditions of the NIT, little deviation will not vitiate neither the tender nor tender process. For this purpose he placed reliance on the judgment of this Court in the case of Tejas Construction and Infrastructure Pvt. Ltd. v. Municipal Council [2011 (3) MPLJ 414]. Learned counsel further submits that this judgment has been affirmed by Hon'ble apex Court which is reported in the case Tejas Construction and Infrastructure Pvt. Ltd. v. Municipal Council [(2012) 6 SCC 464]. Hon'ble Apex Court held that in absence of any mala-fides or arbitrariness in process of evaluation of bids and determination of eligibility of bidders, High Court rightly did not interfere with award of contract. It is also submitted that the writ Court would not be justified in interfering with commercial transactions in which the State is one of the parties to the same except where there is substantial public interest involved and in cases where the transactions were mala-fide. In the present case no such circumstances are exists. Learned counsel for the Respondent Nos. 1 and 2 also placed reliance on the judgment of this Court in the case of Ami Art Creations & Offset Printers v. Board of Secondary Education [2009 (5) MPHT 371 (DB)].

53. In the present case the facts are quite different. Respondent Nos. 1, 2 & 3 have acted in arbitrary and discriminatory manner in awarding the tender to Respondent No. 4. Thus, the decisions cited by the Respondent Nos. 1 and 2 are not helpful to them. It is pertinent to note that arbitrary decision of UMC is detrimental to public interest.

54. With the aforesaid, we are of the view that the whole process of award tender to Respondent No. 4 is arbitrary and mala-fide. Therefore, we have no option except to quash the acceptance of tender and issuance of the work order in favour of Respondent No. 4 by UMC.

55. The petition is allowed as indicated above. No order as to costs.