IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH: NAGPUR

W. P. No. _________/2019

(IN THE MATTER OF ILLEGAL CANCELLATION OF TENDER

PURSUANCE TO OPENING OF TECHNICAL AND FINANCIAL BID

DESPITE HAVING ENOUGH COMPETENT BIDDERS AND BY

NEGLECTING THE TENDER CONDITION AND OVERRULING

GOVERNMENT RESOLUTIONS)

IN THE MATTER OF THE CONSTITUTIN OF INDIA (ACT CODE-

_____________)

PETITIONER: M/s Bhavana Energy Infrastructure

Pvt. Ltd.,

Through it’s Director

Shri. George Kutty Lukose,

Office at Industrial Estate Area,

Mul Road, Chandrapur,

Versus

RESPONDENT: 1] The State of Maharashtra,

Through its Secretary,

Department of Energy and Power,

Mantralaya, Mumbai.
 2] Maharashtra State Power Generation

Company Ltd., through its Chairman

cum Managing Director, Prakashgadh,

Mumbai-32.

3] The Chief Engineer,

(Operation and Maintenance)

Chandrapur Super Thermal Power

Station, Maharashtra State Power

Generation Company Ltd., at

Chandrapur.

IN THE MATTER OF WRIT PETITION UNDER ARTICLE

226 AND 227 OF THE CONSTITUTION OF INDIA AND IN
THE MATTER OF CANCELLATION OF TENDER BY
ILLEGAL MANNER

1. Shorn of all paraphernalia, essential facts in nutshell are

as under: -

2. That, the petitioner is a Private Limited Company and is

a reputed contractor having experience of 30 years to

work as contractor in various fields. The petitioner Firm

is having its Geared-up Infrastructure to execute various

operation and maintenance systems of power plants. The

petitioner most respectfully submits that, the strength of

 technically qualified staff as well as supervisory staff is at

his disposal. The petitioner further submits that, it has

participated in various tenders floated by the respondent

no.3 for operation and maintenance works of various

systems of thermal power plant.

3. That, as far as the present petition is concerned, same is

in respect of tender floated by respondent no.3 vide

tender no. 75823 (amendment-4) which is meant for,

“Annual work contract of milling plant maintenance

including CMR handling operation and maintenance

including related electrical and C&I works at 2x500 MW

CSTPS, Chandrapur, MAHAGENCO for two years. The

estimated cost put to tender is Rs. 5,28,26,461/-. The

submission date of the tender was 23.11.2018 with

tender validity of 120 days. The copy of tender published

by respondent no.3 dated 7.11.2018 is annexed herewith

and marked as Annexure – 1.

4. The qualification criteria and details of work have been

notified in the tender document. The criteria which have

been mentioned as pre-qualifying criteria is undoubtedly

notifying the eligibility, nature of experience and

definition of work. The petitioner submits that, the tender

was to be submitted in two bids i.e.

1) Technical bid and

 2) Financial / commercial bid.

In accordance with the tender conditions all the

documents except the financial figures are required to be

submitted alongwith the technical bid. Since the tender

was on e-tendering proceedings all the documents as per

pre-qualification requirement are required to be

submitted online with technical bid.

5. The petitioner further submits that, no documents except

the financial figure of bid are required to be submitted

with financial bid and the petitioner have submitted the

required document in respective bids. M/s Bhavana

Energy Infrastructure Pvt. Ltd, i.e. the petitioner, M/s

Adore Contractors Pvt. Ltd., Chandrapur, M/s AKA

Logistics Pvt. Ltd., Calcutta and M/s Tirupati

Constructions, Engineers and Contactors have

participated in the tendering process.

6. In pursuance of the opening of technical bid on

04.12.2018, the respondent no.3 after scrutinizing the

documents submitted in the technical bid, hold and

declared M/s Tirupati Constructions, Engineers and

Contactors as disqualified in the tendering process and

have not opened his financial bid.

7. The Petitioner further submits that, Respondent no 3

declared M/s Adore Contractors Pvt. Ltd., Chandrapur,

 M/s AKA Logistics Pvt. Ltd., Calcutta and M/s Bhavana

Energy Infrastructure Pvt Ltd. i.e. the petitioner, as

qualified bidder in pursuance to opening of technical bid

and after verifying the documents in consonance with the

prequalification criteria.

8. That, pursuance to opening of technical bid and after

reaching to the conclusion that the documents submitted

are not satisfying the prequalification requirement,

respondent no.3 hold and declared M/s Tirupati

Constructions, Engineers and Contactors as disqualified.

The petitioner further submits that, he has submitted a

representation on 5.12.2018 and have raised objection

on the documents submitted by M/s Tirupati

Constructions, Engineers and Contactors. The copy of

objection dated 5.12.2018 is annexed herewith and

marked as Annexure – 2.

9. The petitioner further submits that, respondent no 3

after declaring M/s Adore Contractors Pvt. Ltd.,

Chandrapur, M/s AKA Logistics Pvt. Ltd., Calcutta and

M/s Bhavana Energy Infrastructure Pvt. Ltd i.e. the

petitioner, as qualified bidder, opened the financial bid

on 12/12/2018 wherein the price quoted by respective

bidders are as under: -

1] M/s Adore Contractors Pvt. Ltd., Chandrapur: -

 0.1 % Below the estimated cost put to tender

2] M/s AKA Logistics Pvt. Ltd., Calcutta: -

27 % Above the estimated cost put to tender

3] M/s Bhavana Energy Infrastructure Pvt. Ltd: -

0.1 % Below the estimated cost put to tender

In accordance with the established procedure of the

tendering the financial bid is opened only when the

bidder is hold and declared as qualified in technical bid.

Petitioner further submits that after opening the price bid

the rates quoted by the qualified bidders are displayed

online and all the successful bidder of technical bid are

authorised to see the rates. The copy of online display

and communication is annexed herewith and attached as

Annexure - 3.

10. It is pertinent to note that, in the teeth of qualifying

criteria laid down in the tender requirement was

1] Three similar completed work costing not less than

the amount equal to 40% of the estimated cost for one

year

OR

2] Two similar completed work each costing not less

than the amount equal to 50% of the estimated cost for

one year
 OR

3] One similar completed work costing not less than

the amount equal to 80% of the estimated cost for one

year.

11. The petitioner further submits that, M/s Tirupati

Constructions, Engineers and Contactors have

approached this Hon'ble Court thereby challenging his

disqualification by respondent no.3 vide writ petition no.

8517/2018. M/s Tirupati Constructions, Engineers and

Contactors on one or the other various grounds

challenged his disqualification in the tender procedure.

the petitioner further submits that M/s Tirupati

Constructions, Engineers and Contactors have concealed

material facts from this Hon’ble court and have

misguided the court on various grounds.

12. The petitioner further submits that the online tendering

procedure allow the participant to submit the experience

certificates and other documents in technical bid and

there is no provision by way of which the documents can

be submitted in the financial bid. Despite this fact been

known to M/s Tirupati Constructions, Engineers and

Contactors misguided this hon’ble court and obtained

interim order. The copy of interim order dated

17.12.2018 Is annexed herewith and marked as

Annexure – 4.
13. The petitioner further submits that, this Hon'ble Court

while rejecting the writ petition no. 8517/2018, on the

grounds that, it is disputed question of fact and not the

law, granted liberty to M/s Tirupati Constructions,

Engineers and Contactors for availing appropriate

remedy. The copy of order dated 15.04.2019 Is annexed

herewith and marked as Annexure – 5.

14. That subsequent to order passed by this Hon’ble court in

WP no 8517/2018, the petitioner requested respondent

no 3 to place the work order to the lowest bidder and in

consonance with the tender condition but the same is

heard with deaf years by respondent no 3. The copy of

request letter is annexed herewith and marked as

Annexure - 6.

15. The petitioner most respectfully submit that the validity

of the tender was 120 days as per the tender document

hence requested respondent no 3 to place work order and

when the same was ignored, the petitioner issued legal

notice respondent no 3. The copy of legal notice is

annexed herewith and marked as Annexure - 7.

16. The petitioner submits that notice was duly replied by

respondent no 3 through his counsel stating that there is

no period prescribed for placing the work order and

approval from competent authority is pending. It was also

 informed that the after getting the instruction form

competent authority, needful will be done by respondent

no 3. The copy of reply is annexed herewith and marked

as Annexure - 8.

17. That, astonishingly respondent no 3 floated a new tender

for the same work by relaxing the prequalification criteria

on 22.05.2019 bearing tender no 3000002514. The

relaxed pre-qualifying criteria laid down in the tender

requirement is

1] Three similar completed work costing not less than

the amount equal to 20% of the estimated cost for one

year

OR

2] Two similar completed work each costing not less

than the amount equal to 25% of the estimated cost for

one year

OR

3] One similar completed work costing not less than

the amount equal to 50% of the estimated cost for one

year.

The copy of New tender document is annexed herewith

and marked as Annexure – 9.

18. It is most respectfully submitted that the respondent no

3 overruled and neglected the government resolution

dated 12.04.2017 and the corrigendum thereof dated

 29.06.2017. The resolution dated 12.04.2017 specifically

provides for the procedure to be adopted for recalling

tender.

19. It is submitted that, the resolution specifically provides

for as to how and when the tenders can be recalled. The

resolution further provides, that if after opening technical

bid, two or less bidder gets qualified in the technical bid

then and then only the tender can be recalled else the

authorities shall proceed with the further proceedings of

the tender. However, in the corrigendum dated 29.06

2017 it is specifically provided that even after third call

of the tender if there is only a single bidder the tender

may be allotted to that particular bidder. It is therefore

most respectfully submitted that the respondent no 3

have neglected and overruled the Government resolution

dated 12.04.2017 and corrigendum thereof dated

29.06.2017. The copy of Government resolution dated

12.04.2017 and corrigendum dated 29.06.2017 is

annexed herewith and marked as Annexure – 10.

20. That the respondent no 3 relaxed the prequalification

criteria so as to suit and favour some contractors and

make them qualified in the technical bid. The petitioner

further submits that in earlier tender there were three

bidder who were declared as qualified in the technical bid

and hence their financial bids were also opened. That

 after opening the financial bids, the rates quoted by the

petitioner and the other successful bidders are known to

all. It cannot be said that there was a healthy competition

and tender proceedings were held in transparent

manner.

21. The government resolution date Government resolution

dated 12.04.2017 and corrigendum dated 29.06.2017

further specifically provides for as to when and how the

prequalification criteria may be relaxed. It is clearly

stated in the said Government resolution that if there are

less than three qualified bidders in tendering process, the

prequalification criteria may be relaxed. The petitioner

further submits that the respondent no 3 again overruled

the directions given in the said government resolution.

22. The petitioner further submits that the respondent no 3

specifically conveyed its acceptance to the petitioner

regarding accepting of technical bid. The petitioner

further submits that respondent no 3 also conveyed

through online proceedings regarding opening of

financial bid in respect of tender no 75823 (Amendment

-4). The copy of online receipt regarding acceptance of

tender is annexed herewith and marked as Annexure –

11.
23. The petitioner further submits that without cancelling

the tender bearing no 75823 (Amendment – 4),

Respondent no 3 floated a new tender for the same work

by relaxing the prequalification criteria without there

being any valid reason and, more precisely to provide

undue favour to certain contractors which demonstrates

the high-handed action on the part of Respondent no 3.

24. That the government of Maharashtra under the scheme

of “Digital India” published the Government resolution

dated 12.04.2017 and corrigendum dated 29.06.2017

and laid down the specific procedure regarding online

tendering process which is binding upon and is a

reference document for all the departments carrying out

E- tendering proceedings. The respondent no may be

with a view to provide undue advantage to certain

contractors or for unknown gain overruled the said

Government resolution which further demonstrates the

breach of trust by public servant.

25. It is further submitted that the tender floated is a

specialized work and directly affects the production of the

thermal power plant. The high ended action on the part

of respondent no3 not only encourage the incompetent

bidder but also reduce the production capacity of the

power plant.
26. The petitioner most respectfully submits the tender

submission date is 05.06.2019 and certain contractors

may participate in the bidding process who cannot be

declared as qualified bidder as per the previous

prequalification criteria but can be hold successful

bidder on the basis on relaxed prequalification criteria.

27. The petitioner has made out exceptionally strong prima-

facie case in its favour and the balance of convenience

also tilts in his favour. Therefore, petitioner begs of this

Hon'ble Court to protect the right of the petitioner. The

petitioner further begs for ad-interim relief needs to be

granted in his favour.

28. The petitioner most humbly and respectfully submits

that he has left with no other alternative and efficacious

remedy than to invoke the jurisdiction of this Hon'ble

Court for redressal of his grievances.

29. The petitioner further most respectfully submits that he

has not approached this Hon'ble Court or any other

Court including Hon'ble Supreme Court of India earlier

to this for the same reliefs.

30. The petitioner has not received any caveat in the matter.

31. The petitioner undertakes to file legible copies of the

documents and the transaction of the documents in

 vernacular language as and when directed by this

Hon'ble Court.

PRAYER: It is therefore, prayed before this Hon'ble Court

may be please to:

(i) To call for record and proceedings in

tender code no 75823 (Amendment -4)

by issuing appropriate writ or

directions.

(ii) To quash and set aside new tender

dated 22.05.2019 and the amendment

carried out in the prequalification

criteria.

(iii) Pending hearing and disposal of the

present writ petition grant interim stay

on tender procedure of tender no

3000002514 thereby restraining

respondent no 3 from opening technical

bid in the interest of justice.

(iv) To grant ad interim Ex Party relief in

terms of prayer clause (iii).

(v) By way of appropriate writ or direction

direct respondent no 1 to initiate

appropriate action in furtherance of

criminal conspiracy hatched on behalf

of respondent no 3.
 (vi) Grant any other relief to which the

petitioner is entitled to in the facts and

circumstances of the petition.

(vii) Saddle the cost of petition on the

respondent.

Nagpur

Dated: 05/06/2019 PETITIONER

SOLEMN AFFIRMATION

I, Shri. George Kutty Lukose, Director of M/s

Bhavana Energy Infrastructure Pvt. Ltd., Chandrapur, aged

about 67 years, Occ.: Business, Office at Industrial Estate

Area, Mul Road, Chandrapur, do hereby take oath and state on

solemn affirmation that the contents of Para no 1 to …. are true

and correct to the best of my knowledge and belief and the

same are verified by me in my vernacular and drafted by my

counsel as per my instructions. Hence, verified and singed at

Nagpur on …. day of May 2019.

I know and identify the deponent.

Advocate Deponent
 HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT
NAGPUR

Writ Petition No. __________/2019

PETITIONER: M/s Bhavana Energy Infrastructure

Pvt. Ltd.,

VERSUS

RESPONDENT: State of Maharashtra

INDEX

Sr. No. Particular Date Page No.

1) Synopsis 24.05.2019
writ petition under article
2) 226 and 227 of the 24.05.2019
constitution of India
3) List of Annexures. 24.05.2019
Annexure – 1:
4) Copy of tender published by 07.11.2018
respondent no.3
Annexure – 2:
5) Copy of objection raised by 05.12.2018
petitioner
Annexure – 3:

6) The Copy of Online display

of Financial Bid
Annexure – 4:
7) Copy of Interim order of this 17.12.2018
Hon’ble court
8) Annexure – 5: 15.04.2019
 Copy of Interim order of this
Hon’ble court
Annexure – 6:
9)
Copy of request letter
Annexure – 7:
10) 09.05.2019
Copy of Legal Notice
Annexure – 8:
11) 11.05.2019
Copy of Reply to legal notice
Annexure – 9:

12) Copy of new tender floated 22.05.2019

for the same work
Annexure – 10:
12.04.2017
13) Copy of Government
29.06.2017
resolution and Amendment
Annexure – 11:
04.12.2018
14) Copy of online acceptance
12.12.2018
receipts

NAGPUR

Dated: 05/06/2019 C. F. Petitioner

 HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT
NAGPUR

Writ Petition No. __________/2019

PETITIONER: M/s Bhavana Energy Infrastructure

Pvt. Ltd.,

VERSUS

RESPONDENT: State of Maharashtra

LIST OF ANNEXURES

Sr. No. Particular Date Page No.

Annexure – 1:

1) Copy of tender published by 07.11.2018

respondent no.3
Annexure – 2:

2) Copy of objection raised by 05.12.2018

petitioner
Annexure – 3:

3) The Copy of Online display

of Financial Bid
Annexure – 4:

4) Copy of Interim order of this 17.12.2018

Hon’ble court
Annexure – 5:

5) Copy of Interim order of this 15.04.2019

Hon’ble court
Annexure – 6:
6)
Copy of request letter
 Annexure – 7:
09.05.2019
Copy of Legal Notice
7)
Annexure – 8:
8) 11.05.2019
Copy of Reply to legal notice
Annexure – 9:

9) Copy of new tender floated 22.05.2019

for the same work
Annexure – 10:
12.04.2017
10) Copy of Government
29.06.2017
resolution and Amendment
Annexure – 11:
04.12.2018
11) Copy of online acceptance
12.12.2018
receipts

NAGPUR

Dated: 05/06/2019 C. F. Petitioner

 HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT
NAGPUR

Writ Petition No. __________/2019

PETITIONER: M/s Bhavana Energy Infrastructure

Pvt. Ltd.,

VERSUS

RESPONDENT: State of Maharashtra

SYNOPSIS

SR.
DATE PARTICULARS
NO.
The respondent no 3 floated a tender
for “Annual work contract of milling
plant maintenance including CMR
handling operation and maintenance
1. 7.11.2018 including related electrical and C&I
works at 2x500 MW CSTPS,
Chandrapur, MAHAGENCO for two
years’’ The estimated cost of tender is
Rs. 5,28,26,461/-.
Four bidders have participated in the
tender procedure namely
1. M/s Bhavana Energy
2. Infrastructure Pvt. Ltd.,
Chandrapur,
2. M/s AKA Logistics Pvt. Ltd.,
Calcutta.
 3. M/s Tirupati Constructions,
Engineers and Contactors.
4. M/s Tirupati Constructions,
Engineers and Contactors
Technical bid of the tender was opened
wherein after verifying documents
submitted by all the bidders,
3. 04.12.2018
Respondent no 3 hold and declare M/s
Tirupati Constructions, Engineers and
Contactors as disqualified bidder.
Financial bid was opened for all
4. 12.12.2018
remaining successful bidders
M/s Tirupati Constructions, Engineers
and Contactors challenged the said
5. 17.12.2018
disqualification in WP bearing no
8517/2018.
This hon’ble court while rejected the
petition filed by M/s Tirupati
6. 15.04.2019
Constructions, Engineers and
Contactors.
Petitioner requested respondent no 3 to
place the work order in view of the
rejection of petition and being lowest
7.
bidder and in view of the validity of
tender period but the same was heard
with deaf ears.
Legal notice is issued by the petitioner
8. 09.05.2019
for issuing of work order.
Reply to legal notice is given by
respondent o 3 through their counsel.
9. 11.05.2019
It is specifically informed that the said
request is under consideration and the
 direction from higher authorities are
awaited in this respect.
Respondent no 3 floated another tender
for the same work thereby relaxing
prequalification criteria so as to favour
10. 22.05.2019 certain contractors and to make them
eligible for the tender proceedings. The
tender is floated without cancelling the
previous tender.
Certain contractors may participate in
the bidding process who cannot be
declared as qualified bidder as per the
11 previous prequalification criteria but
can be hold successful bidder on the
basis on relaxed prequalification
criteria.
In accordance with the tender
condition the tender can be cancelled
or withdrawn before communication of
11. the acceptance of the tender. Here the
cancellation of tender by respondent no
3 after opening the financial bid which
was duly conveyed to the petitioner.

The government resolution specifically

provides for under what circumstances
the tender can be recalled. Respondent

12.04.2017 no 3 overruling and neglecting the said

12. GR unanimously recalled and refloated
29.06.2017
the tender. Despite there being three
successful bidders the respondent no 3
refloated and recalled the tender for the
same work which is shear violation of
 direction given vide said Government
resolution.

Respondent no 3 floated a new tender

for the same work by relaxing the
prequalification criteria without there

12. 22.05.2019 being any valid reason and, more

precisely to provide undue favour to
certain contractors which demonstrates
the high-handed action on the part of
Respondent no 3.

POINTS TO BE HEARD:

1. Whether the respondents 3 is justified in refloating the tender

for the same work without cancelling the previous tender and
subsequent to opening of technical as well as financial bid?
2. Whether the respondents 3 is justified in amending
prequalifying requirement of the tender without there being
any need and valid reason?

3. Whether the respondents 3 is justified in refloating the tender

when the quoted price in the earlier tender is known to
everybody.

ACTS AND RULES TO BE REFERRED

1. Constitution of India.

CASE LAW TO BE RELIED

Relevant case laws will be cited at the time of argument.

NAGPUR
Dated: 05/06/2019 Counsel for Petitioner