Bombay HC asks Mumbai Metropolitan Region Development Authority (MMRDA) to not open financial bids for another day for Thane Bhayandar tunnel project
MUMBAI: The
vacation bench on Wednesday requested the Mumbai Metropolitan Region Development Authority (
) not to open the
until Thursday in the tendering process for the Thane-Ghodbunder to Bhayandar tunnel and elevated road project.
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This project is the second longest proposed flyover after Atal Setu.
The High Court, which heard a petition filed by construction giant
(L&T), one of the bidders who invoked the court's plenary power to ensure 'transparency and fairness' in the bidding process, said it would take up the matter again on Thursday. On Tuesday, when L&T first moved the High Court, the vacation bench of Justices Kamal Khata and Arif Doctor restrained MMRDA from opening the bids scheduled for May 13, until Wednesday.
On Wednesday, senior counsel AM Singhvi from Delhi and Janak Dwarkadas in Mumbai argued for L&T, one each for the tunnel and elevated road project bid, to say MMRDA cannot oust them from being present and participating in the opening of financial bids. For MMRDA, senior counsel Mukul Rohatgi and solicitor general Tushar Mehta argued that of the five-odd bidders, others were also found non-responsive in both projects at the technical bids stage and would be informed once the final bidder was selected.
Dwarkadas said L&T was not intimated about the technical bids status and it was only in court that MMRDA's Mehta orally said it was found non-responsive. 'Oral communication is the worst form of arbitrariness,' submitted Dwarkadas. When the bench asked MMRDA if they could give in writing to L&T their ineligibility, Mehta said the 'contract terms are so designed to avoid litigation during the tendering process stage.
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' L&T said it came to court to enforce its right to participate as a bidder.
MMRDA said it was open to unsuccessful bidders to challenge later after the lowest bidder is selected, and they would not be left remediless. Both Rohatgi and Mehta said the project was large and in the public interest and could 'brook no further delay.'
Dwarkadas said hypothetically if L&T is found to be the lowest bidder by Rs 2000 crore and if it finds later its technical bids were rejected arbitrarily, would the state exchequer not be the sufferer? Rohatgi said L&T didn't disclose the clauses of the bid documents which allow MMRDA not to inform the bidder of its ouster during the bidding process—terms identical to the bullet train project and hence for 'suppression' alone their plea should be 'dismissed with exemplary costs.
' Besides, he argued since they participated in the bidding process, they are estopped from challenging the process now.
Dwarkadas argued that the bullet train project was fully foreign-funded and the top court had said judicial review could be restricted only on grounds of 'nepotism and favouritism' but here when the High Court asked if the Thane project was foreign-funded, Rohatgi said, 'not sure as yet' but added, the source of funding doesn't matter as the project is in the public interest and MMRDA was well within its rights to open the financial bids and can leave the non-responsive bidders by the wayside.
However, L&T counsel expressed concern at the lack of transparency that it claimed can entail if other bidders are not present when financial bids are being opened.
The High Court will hear and is likely to pass orders in the matter on Thursday.
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