The Bombay High Court has held that the use of the most advanced technology to rehabilitate the stormwater arch sewers in Mumbai was of the utmost importance and mere incurring of extra cost over other available technology would not be a valid reason to not adopt better technology.

The High Court has also held that in tenders and contractual matters, where technical knowledge of experts on that field is involved, the Courts have very limited scope of intereference.

The Bench of Acting Chief Justice S.V. Gangapurwala and Justice Sandeep V. Marne observed that “...we would not interfere with MCGM’s opinion that geopolymer trenchless technology would be the best possible technology to be employed for execution of the work. We are not experts in the field. The decision is taken based on opinion of experts. Storm water arch drains which are sought to be rehabilitated are more than 100 years old. Mumbai receives heavy monsoon every year and use of best possible technology for proper rehabilitation and maintenance of storm water arch drains would be of paramount importance. Mere incurring of extra cost over other available technology would not be a valid reason to eschew the better technology. Therefore, additional costs involved in adopting chosen technology would not entail presumption of favouritism to Respondent No.2.”

Senior Advocate Venkatesh Dhond appeared for the petitioner and Senior Advocates Narendra Walawalkar and Virag Tulzapurkar appeared for the respondent 1 and 2, Additional Government Pleader Milind V. More appeared for the State.

In this case, a petition was preferred by the petitioner-company against the decision of the Municipal Corporation in choosing ‘Geopolymer Lining Trenchless Technology’ (geopolymer technology) for the execution of the work of rehabilitation of 100-year-old stormwater arch drains.

The counsel for the petitioner contended that the tender conditions were tailormade to favour Respondent No. 2- GeoTree Solutions as the bidders procuring its GeoSpray Geopolymer technology alone would be eligible to bid in the tender process.

The petitioner participated in pre-bid meetings but didn’t submit its bid and opposed the exclusive use of geopolymer technology. Municipal Corporation Greater Mumbai (MCGM) proceeded with the tender process and opened the technical and financial proposals. Thereafter, the petitioner filed the writ petition for cancellation of the bid procedure.

The Counsel for the MCGM submitted that the petitioner had no locus standi to challenge the bidding process as he did not participate in the bid. It was also submitted that the work undertaken by MCGM was of utmost importance and was urgently required to be executed and commenced before the onset of the monsoon.

The Court observed that the Court would be loath to interfere with the decision of the tendering authority as the use of technology was a highly technical matter for which, the tendering authority was the best judge to decide the exact technology to be employed for execution of the work.

“In tender and contractual matters, the scope of interference by courts is in a narrow compass. In examining challenge in tender matters, this court would be concerned more about adherence to the procedure. Unless arbitrariness, irrationality or bias is demonstrated, this court would not interfere in tender matters. It is also equally well settled that the tendering authority is the best judge to determine the tender conditions. This court would not sit as an appellate authority over the tender conditions prescribed by the tendering authority.” observed the Court.

Further, the High Court said that the petitioner himself disclosed the existence of GeoKrete, an additional geopolymer trenchless technology brand. Therefore, it could not be said that the respondent no.2 had monopoly on the use of geopolymer trenchless technology. Also, the bidders could have acquired the geopolymer technology from any available source, there was no restriction.

Therefore, the Court held that the petitioner, being a stranger to the bidding process, could not have challenged it. And, accordingly, the writ petition was dismissed.

Cause Title- Gypsum Structural India Pvt. Ltd. & Anr. V. Brihanmumbai Municipal Corporation & Ors.

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