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Synopsis

The Bombay High Court recently said that as Mumbai experiences heavy monsoons every year, mere incurring of extra cost would not be a valid reason to not adopt better technology to rehabilitate 100-year-old stormwater arch sewers in Mumbai.

The bench of Chief Justice SV Gangapurwala and Justice Sandeel V Marne observed that the use of the most advanced technology to rehabilitate the stormwater arch sewers in Mumbai is of the utmost importance.

“Storm water arch drains which are sought to be rehabilitated are more than 100 years old. Mumbai receives heavy monsoon every year and the use of the 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,” the court observed.

The present petition was filed by a company aggrieved by 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.

It was contended that GeoTree Solutions, an American company that developed the GeoSpray-Geopolymer brand has a monopoly in the use of geopolymer technology and that the conditions of the bidding process were tailormade to favour the respondents as the bidders procuring its GeoSpray Geopolymer technology alone would be eligible to bid in the tender process.

Gypsum Structural India Pvt. Ltd. (petitioner) participated in pre-bid meetings but didn’t submit its bid. It opposed the exclusive use of geopolymer technology. BMC proceeded with the tender process and opened the technical and financial proposals. Therefore, the petitioner filed the present writ petition requesting that the bid procedure be cancelled.

Senior Advocate appearing for Municipal Corporation questioned the locus standi of the petitioner as no bid was submitted by the company in pursuance of the tender process. It was 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.

It was further submitted that the prayers in the petition were couched in such a manner that would completely shun the use of geopolymer technology for the execution of work.

The court observed that the employer was the best judge to decide the exact technology to be employed for the execution of the work.

“In tender and contractual matters, the scope of interference by courts is in a narrow compass. In examining challenges 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,” the court observed.

The tender process for execution of work of public importance cannot be interfered with based on surmises and conjectures, the court said.

The court observed that the petitioner company itself disclosed the existence of GeoKrete, an additional geopolymer trenchless technology brand. Therefore, the court disregarded the claim that GeoSpray has a monopoly on the use of geopolymer trenchless technology.

The court said that there is no restriction on the bidders from acquiring the geopolymer technology from any available source.

“In the present case, 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,” the court said.

Since the petitioner did not submit a proposal, the court ruled that he was a stranger to the bidding process and could not challenge it. The court noted that he could have obtained geopolymer trenchless technology from available sources and participated in the bidding process, but chose not to.

Case Title: Gypsum Structural India Pvt. Ltd. &Anr. vs. Brihanmumbai Municipal Corporation &Ors.