Dismissed

Balaji Mahila Shikshan Prasar and Samaj Kalyan Sanstha, through President, Mrs. Snehal v. Pawar v the Commissioner, Mira-Bhayander Municipal Corporation and Anr.

Bombay HC23 Jul 2013WP/4174/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of a society's tender bid. The court held that the rejection was justified because the petitioner's other society, run by the same president, had been blacklisted for substandard performance in a previous contract.

What did the court decide?

Petition dismissed in limine; no interference with the corporation's order of rejection.

Balaji Mahila Shikshan Prasar and Samaj Kalyan… — Public Procurement and Tenders | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4174 OF 2013

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Balaji Mahila Shikshan Prasar and Samaj Kalyan Sanstha through its President Mrs Senhal V. Pawar

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….. Petitioner

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V/s

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The Commissioner, Mira-Bhayander Municipal Corporation & Anr.

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…... Respondents.

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Mr B.S. Nayak i/b Mr. Makarand P. Panchakshan for the Petitioner.

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Mr. N.R. Bubna for Respondent No.1.

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Mrs. M.P. Thakkar, AGP for Respondent No.2.

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CORAM: V. M. KANADE & K. R. SHRIRAM, JJ.

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DATE: 23^rd July, 2013

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P.C.:-

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By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is seeking writ, order and direction, directing the Respondent – Corporation to award tender dated 06/05/2012 issued by the Mahila Bal Kalyan Department to the Petitioner Society.

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Brief facts which are relevant for the purpose of deciding this Petition are as under:-

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Respondent – Corporation issued a tender notice dated 06/05/2012 for starting various training programs for Women and Girls. The tender form was made available on the Corporation's Website from 08/05/2012 till 17/05/2012.

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The tender was sent back for re-selection on 21/05/2012 since, according to the Petitioner, only two bidders had completed all the required formalities and the other four bidders had not filed their experience certificates. It is the case of the Petitioner that it had submitted a complete set of documents alongwith the tender bid. However, it was rejected on the ground that in the year 2009-10 Petitioner Society was blacklisted by the Respondent – Corporation. It is the case of the Petitioner that new tender was opened and, after ascertaining the technical bid, the financial bid was also opened. When the Petitioner came to know that the name of the Petitioner Society had been entered into blacklist, a representation was made to the Commissioner of Respondent Corporation. Thereafter, Petitioner was informed on 18/6/2012 that its name was wrongly entered in the said blacklist and that it would not be considered as blacklisted. It is submitted that even after the new tender

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was issued, again, Society's bid was rejected on the ground that the Society is blacklisted. It is submitted that the impugned order is, therefore, liable to be set aside and the tender may be awarded to the Petitioner – Society.

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The Deputy Commissioner has filed an affidavit-in-reply. It is stated in the reply that one Mrs. Snehal Pawar is the President of the Petitioner Society as well a one Vaibhav Laxmi Balak Vikas Society. It is stated that the Corporation had, by order dated 09/11/2009, blacklisted Vaibhav Laxmi Balak Vikas Society run by Mrs. Snehal Pawar. It is stated that President of both the Societies is Mrs Snehal Pawar. It is stated in the reply that Vaibhav Laxmi Balak Vikas Society run by Mrs. Senhal Pawar was blacklisted for giving substandard breakfast and tea on 17/1/2009 and 18/1/2009 at Respondent Corporation's event. It is contended that the said order has not been challenged by Mrs. Snehal Pawar and, as such, it was not open for her to challenge rejection of the tender

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In our view, submissions made by the learned Counsel for the Petitioner cannot be accepted. It is not in dispute that Vaibhav Laxmi Balak Vikas Society which was looked after by Mrs. Snehal Pawar was blacklisted in 2009 and the said order of blacklisting has not been challenged by her. The present Society is also run by Mrs. Snehal Pawar. Apart from

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that, Petitioner not having challenged the earlier order of blacklisting of other Society which was run by her, it is not now open for the Petitioner to contend that the said blacklisting was not proper. The Apex Court in Raunaq International Ltd vs. V.R. Construction and Others¹ has observed in para 9 as under:-

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“9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be :

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(1) The price at which the other side is willing to do the work;

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(2) Whether the goods or services offered are of the requisite specifications;

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(3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;

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(4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;

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(5) past experience of the tenderer, and whether he has successfully completed similar

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work earlier;

(6) time which will be taken to deliver the goods or services; and often

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(7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services.

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Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.”

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Similarly, in para 16 of the said judgment, the Apex Court has observed as under:-

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“16. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often When an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work can be legitimately paid in order to secure proper performance of the contract and good quality of work - which is as much in public interest

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as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee.”

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The Apex Court has, therefore, laid down the criterion on the basis of which a bid can be rejected and the past performance has been held to be a valid criteria for rejecting the bid. In the present case, Corporation has noted the past performance of the Society managed by the Petitioner viz. Vaibhav Laxmi Balak Vikas Society who had given substandard food when it was awarded the contract. President of the said blacklisted Society is also a President of the present Society. In our view, therefore, Respondent – Corporation was justified in not awarding the contract to the Petitioner - Society.

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We, therefore, do not propose to interfere with the order passed by the Respondent – Corporation. Petition is dismissed in limine.

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(K.R. SHRIRAM, J.) (V.M. KANADE, J.)

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B.D. Pandit

Balaji Mahila Shikshan Prasar and Samaj Kalyan Sanstha, through President, Mrs. Snehal v. Pawar v the Commissioner, Mira-Bhayander Municipal Corporation and Anr.

Case brief

What is this about?

What did the court decide?

Balaji Mahila Shikshan Prasar and Samaj Kalyan Sanstha, through President, Mrs. Snehal v. Pawar v the Commissioner, Mira-Bhayander Municipal Corporation and Anr.

Case brief

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What did the court decide?

What the court decided

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