The Bombay High Court on Tuesday upheld Brihanmumbai Electric Supply & Transport's (BEST) decision to disqualify Tata Motors' bid for operation of electric buses.
A division bench of Justices Sanjay Gangapurwala and M.J. Jamdar observed that the company had deviated from the "material and the substantial term" of the tender and thus, BEST had rightly disqualified it from the tender process.
BEST had floated a tender inviting bids for operation of State Carriage Services for public transport of 1,400 single-decker Air Condition electric buses in Mumbai and its extended suburbs on gross cost contract model for 12 years. The tender of Tata Motors was rejected as the primary requirement of the tender document, that the electric vehicle offered should run 200kms in a single charge for Single Decker air conditioning bus, was not met. The court noted that this was a key requirement.
Evey Trans Pvt. Ltd was the competing bidder firm along with Tata Motors and the Respondent No. 2 in this writ petition filed by Tata Motors. The contract for 2,100 electric buses was awarded to Evey Trans.
The court noted that Evey had made a declaration that there are no deviation in the bid submitted by it viz. the tender document.
Tata Motors alleged BEST of corruption and favouritism. It stated that Tata Motors filed its technical and financial bid for the tender following a pre-bid meeting during which it requested that BEST amend certain tender parameters, which BEST agreed to do.
Meanwhile, BEST released the tender's technical suitability evaluation, which Tata claimed was incorrectly labelled as "technically non-responsive" while terming Evey's bid as "responsive". Tata Motors had challenged the award of tender to Evey on the grounds that 2 hours before the technical evaluation, in complete disregard of tender conditions which put a specific embargo on any changes to the technical bid after opening of the technical bid, BEST allowed Evey Trans to change its bid.
The Bench noted that, "In matters of tender, this Court would be slow to exercise its writ jurisdiction. The writ jurisdiction would be exercised sparingly and not as a matter of course. This Court would be more concerned with adherence to the decision making process. However, if the Court finds that the decision making process smacks of arbitrariness then this Court in matters of contract and tender may step-in and exercise its jurisdiction under Article 226 of the Constitution of India."
Considering the facts of the instant case, the court noted that tender document specifically prohibits any addition/correction or submission of document after the technical bids were opened. However, BEST permitted Evey to submit a revised undertaking from OEM for operating range as per single charge requirement.
The aforesaid, the court said, does not depict fair play in action. "The facts create doubt about, whether the decision was a fair one or was the decision reached fairly?"
Thus, it set aside BEST's decision accepting Evey's bid. With Tata and Evey both out of the picture, court said BEST may issue a fresh tender.
Case title : TATA Motors Ltd. & Anr. V The Brihan Mumbai Electric Supply & Transport Undertaking (BEST)
Citation: 2022 LiveLaw (Bom) 244