Bombay High Court: In the present case, the petitioner, L&T Ltd. preferred a writ petition seeking urgent restraining orders against the respondents to prevent opening of Cover-II which contained the financial bids for the Elevated Road Project, without first notifying the petitioner of the fate of its technical bid. The Division Bench of Kamal Khata and Arif S. Doctor, JJ., noted that the terms of the tender contemplated that reasons should be communicated to the unsuccessful bidder only after the award of the contract and stated that the petitioner accepted Clauses 11.3, 36, and 38 of the Instruction to Bidders (‘ITB’) and participated in the tender, therefore, it would now not be open to the petitioner to agitate to the contrary.
The Court opined that the Project was a mega-infrastructure project of significant public importance, thus, any delay of the same would adversely impact the project’s execution and considering the magnitude of the project, evaluation of the bids would take time and even if there was a delay on MMRDA’s part, it could not mean that the project could be further delayed by the petitioner. The Court thus dismissed the petition and discontinued the interim stay on the opening of the financial bids.
Background
Respondent 1, MMRDA, a statutory body under the Government of Maharashtra and a ‘State’ within the meaning of Article 12 of Constitution, issued a notice on 27-7-2024, inviting Tender for the public infrastructure project, namely, the Elevated Road Project (‘the Project’), which envisaged a 9.8 km bridge passing along the Vasai Creek and having an estimated value of approximately Rs 6,000 crores, which was part of an extension of the Mumbai Coastal Road project and a part of the MMRDA’s larger road expansion project involving the construction of approximately a 15 km stretch of road from Gaimukh in Thane to Bhayander.
The petitioner, a reputed Indian multinational conglomerate and one of the foremost multinational construction companies in India, was one of the bidders for the Project and on 13-12-2024 submitted its technical bid, which was opened on 1-1-2025. Thereafter, the petitioner learnt that MMRDA addressed letters to some bidders to remain present for the opening of the financial bid on 13-5-2025 and as it did not receive any intimation from MMRDA either by an email communication or on its portal, it addressed a letter dated 12-5-2025 and requested MMRDA to confirm whether the financial bid was indeed, being opened on 13-5-2025. The petitioner in the letter clarified that the petitioner would be constrained to proceed on the basis that MMRDA would open the bid on 13-5-2025 contrary to the terms of the Instruction to Bidders (‘ITB’) and in violation of the principles of natural justice.
The petitioner, however, did not receive any intimation from MMRDA calling upon the petitioner to either remain present for the opening the bid or to the effect that the petitioner’s technical bid was found to be non-responsive. Further, as the petitioner apprehended that MMRDA would proceed to open the financial bids of other bidders to its exclusion, contrary to fair and transparent tender process that MMRDA must follow, thus, the petitioner filed the present petition. The petitioner submitted that MMRDA, being a public authority, was bound to act in a non-discriminatory, fair, and transparent manner and was bound to intimate the petitioner about the outcome of the evaluation of its technical bid before the financial bids were opened.
Analysis, Law, and Decision
The issue for consideration was “whether the petitioner was justified in contending that the MMRDA’s conduct in proceeding to open the financial bids without first declaring the petitioner’s technical bid as unresponsive was contrary to the terms of the tender?”.
The Court referred to Clause 11.3 of ITB which stated that MMRDA would not communicate information relating to the evaluation of the tender until the Employer communicated information on the Contract award to all Bidders. Thus, the Court opined that as there was no final notification of the award, the stage to seek such information did not arise.
The Court stated that it was incumbent upon the petitioner to explain why Clause 11.3 of ITB was not applicable, but the petitioner did not do so, and thus the Court agreed with contention of the respondents that the petitioner was guilty of suppression of a material fact.
The Court opined that the party who invoked the extraordinary jurisdiction of this Court was supposed to be truthful, frank, and open and must disclose all the material facts without any reservation, even if they were against such a party. Further, it was not open to a party who sought equity to play “hide and seek” or to “pick and choose” certain facts and to suppress and/or conceal other facts.
The Court also referred to Clauses 36 and 38 of ITB which indicated that the Employer should evaluate and consider only those packets which were responsive, and the technical bids of all other bidders were therefore deemed to be non-responsive and thus excluded from consideration. The Court opined that the petitioner accepted Clauses 11.3, 36, and 38, and participated in the tender, therefore, it would now not be open to the petitioner to agitate to the contrary.
The Court noted that the terms of the tender contemplated that reasons should be communicated to the unsuccessful bidder only after the award of the contract and opined that the author of the tender document was the best person to interpret such a document and the requirements under it. Thus, the Court stated that it was not open to the petitioner to interpret the tender conditions in a manner which was contrary to MMRDA’s interpretation.
The Court agreed with the contention of the counsel for the petitioner that ITB was contrary to the PWD and CVC guidelines and opined that the same were opaque and could give rise to the tendering authority acting in an arbitrary and non-transparent manner. The Court, however, stated that the petitioner accepted the terms of the tender by participating in the tendering process and did not challenge the same before participating in the process.
The Court opined that the Project was a mega-infrastructure project of significant public importance, thus, any delay of the same would adversely impact the project’s execution. The Court noted that the respondents stated that the petitioner would be (i) furnished with the reasons for rejection of its technical bid; and (ii) all rights and contentions of the petitioner shall be kept open, including challenging the rejection of its technical bid and the award of the tender by way of writ petition. Thus, the Court stated that no prejudice would be caused to the petitioner.
The Court rejected the petitioner’s contention that there was a delay on MMRDA’s part and opined that considering the magnitude of the project, evaluation of the bids would take time and even if there was a delay on MMRDA’s part, it could not mean that the project could be further delayed.
The Court thus did not interfere in the tender process, dismissed the petition, and discontinued the interim stay on the opening of the financial bids.
[L&T Ltd. v. MMRDA, Writ Petition (L) No. 15215 of 2025, decided on 20-5-2025]
Advocates who appeared in this case :
For the Petitioner: Abhishek Manu Singhvi, Senior Counsel, a/w S.U. Kamdar, Senior Counsel, Zal Andhyarujina, Senior Counsel, Chirag Kamdar, Priyanka Sharma, Advocate Ativ Patel, Advocate Viloma Shah, Harshad Vyas, Pawan Kulkarni, and Viraj Raiyani, i/by AVP Partners for the Petitioner.
For the Respondents: Tushar Mehta, Solicitor General of India, a/w Mukul Rohatgi, Senior Counsel, Chirag Mody, Advocate Anjan Dasgupta, Advocate Rimali Batra, Advocate Prachi Garg, Advocate Prerna Verma, Advocate Abhishek Lalwani, and Advocate Sayalee Dolas, i/by DSK Legal for the Respondents in both Petitions; Yatin Sakhalkar, representative of MMRDA.
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