No stay on opening of financial bids in Thane-Bhayandar tunnel and elevated road project: Bombay HC, denies relief to L&T
Bombay HC
MUMBAI: The Bombay High Court vacation bench on Tuesday granted no relief to construction major Larsen & Toubro, one of the bidders in the Thane-Bhayandar Tunnel and elevated road project.
The division bench of Justices Kamal Khata and Arif Doctor did not stay the opening of the financial bids that were scheduled for May 13, originally. However, the HC stated that after opening the financial bids and communicating the decision to the winning bidder, the financial bids are to be preserved in a sealed cover for two weeks to enable L&T to appeal to the Supreme Court.
The tunnel, 5 km, and the elevated road, 9.8 km, together make it the second-longest road project after the almost 22 km long Atal Setu and is being undertaken by the Mumbai Metropolitan Region Development Authority (
MMRDA
).
The project cost is estimated at over Rs 14,000 crore.
Earlier, as an urgent interim order, the HC initially stayed the opening of the financial bids—the final stage of the bidding process—for a day and then, during the hearing, asked the Mumbai Metropolitan Region Development Authority (MMRDA), which is executing the two projects, not to open the bids until it passes orders. The reasoned judgment copy will be made available later during the day.
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However, when L&T's senior counsel Janak Dwarkadas, in one of the two petitions—separate petitions were filed for the two bids for the tunnel and elevated road—sought to request the presence of the company's representatives at the opening of the financial bids, the HC was not inclined and orally said it was held in his petition that the bidder came to court after suppressing material.
Last Thursday, the HC closed for orders a petition filed by construction major Larsen & Toubro (L&T) to challenge the opening of financial bids without its presence as a bidder for two projects, one a tunnel and the other an elevated road from Thane-Ghodbunder to Bhayander.
Earlier, L&T played a lead role in the construction of the Mumbai Trans Harbour Link (Atal Setu), also an MMRDA project.
The High Court vacation bench of Justices Kamal Khata and Arif Doctor sought written submissions from both sides. On Wednesday, it requested MMRDA not to open the bids until Thursday when it concluded the hearing and extended the stay against the opening of the financial bid—which is the last stage of the tendering process.
Senior counsel
Mukul Rohatgi
, logging in via video conferencing from Delhi and appearing for MMRDA, as did Solicitor General
Tushar Mehta
, said not just L&T, there were two other bidders in one of the projects and one more in the second project, who were found non-responsive when technical bids were opened. Under the terms of the tendering process, they will be intimated once the bidder is finalised after the opening of financial bids. There were around five bidders overall, the court was informed.
Rohatgi argued that the petitioner suppressed bid conditions and clauses which clearly enable MMRDA not to disclose its decision on the technical bid round to the bidders during the process but entail intimation after the winning bid is selected.
For L&T, which filed two separate petitions for the tunnel and elevated road projects, senior counsel AM
Singhvi
and
SU Kamdar
appeared on Thursday, arguing how the non-intimation after the opening of technical bids—the second stage of the bidding process—flouted even State guidelines and various fundamental rights, including equality, the right to trade, and the right to life, in tenders for public projects, entailing public funds.
Rohatgi and
Mehta
cited the Mumbai-Ahmedabad high-speed rail (bullet train) project judgment of the Supreme Court, termed the '
Montecarlo
' case, after the bidder whose technical bid was held non-responsive went to court and was unsuccessful before the apex court. In large public projects, the bid documents are made to ensure there is no litigation during the tendering process, as delay would not augur well, Mehta argued.
L&T counsel argued that the bullet train is foreign-funded and the SC carved a distinction, but MMRDA cannot be allowed to turn the settled principles of transparency and fairness long held by the courts as the foundation of the tendering process for public projects on its head.
MMRDA said the tender terms were the same in the bullet train project, hence L&T's petition ought to be dismissed. The SC in the Montecarlo matter held, 'Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disable the State or its instrumentalities from discharging the constitutional and legal obligation towards the citizens.
Therefore, the High Courts should be extremely careful and circumspect in the exercise of its discretion while entertaining such petitions.'
The Elevated Road Project is an extension to the Mumbai Coastal Road Project: envisages a 9.80 km bridge passing along the Vasai Creek. It is estimated at approximately ₹6000 crore,
The tunnel is 5 km long from Gaimukh to Fountain Hotel Junction on Thane Ghodbunder Road; estimated at Rs 8000 crore with the largest diameter of 14.6 m.
L&T invoked PWD guidelines casting obligations on communicating the list of qualified/disqualified bidders after the technical round, which the MMRDA argued was not mandatory as held earlier in a matter by the HC., MMRDA argued that the guidelines were not mandatory as held earlier in another matter by the HC
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