G.S. Kulkarni JUDGMENT
G.S. Kulkarni, J.
1. In this petition under Article 226 of the Constitution, the petitioner nos. 1 and 2 who have formed a joint venture namely M/s. M.E.-KK (JV), are bidders in an E-tender issued by the respondent no. 1-Municipal Corporation for Greater Mumbai (for short "Municipal Corporation") for the "Hire of vehicles for Collection and Transportation of Municipal Solid Waste (MSW) including Materials Removed from the Slums in wards for the period of seven years.". Respondent nos. 8, 9 and 10 also in a joint venture, have participated in the said tender and have submitted their bid. This tender is invited for the fourth time since last one year. The earlier three invitations were cancelled by the municipal corporation, due to low response.
2. For an earlier period, the municipal corporation had awarded the tender work to the Petitioner No. 1 alongwith another firm, for the period 2012-2017. The contract having expired in August 2017, the petitioner no. 1 as on date continues to undertake the contract work on ad hoc basis at rates stated to be thirty percent higher than the bids received under the present tender.
3. The grievance of the petitioners is in regard to the decision of the municipal Corporation as taken in the tender process, whereby, according to the petitioners the municipal corporation has not strictly adhered to the following tender condition appearing in the tender document at section 2-namely the section prescribing "Eligibility Criteria":-
"Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they:
Have made misleading or false representation in the forms, statements and attachments submitted in proof of the qualification requirements, and/or Have record for poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, or financial failures etc.
Did not disclose litigation history during last five years"
(Emphasis supplied)
4. The contention of the petitioners is that, respondent nos. 8 to 10 have not made a full disclosure of the 'litigation history' during the last five years as required by the above tender condition and thus respondent nos. 8 to 10 are disqualified from participating in the tender and/or for award of the contract. To support this contention, in paragraph 4.4 of the petition, the petitioners have given the following details of the five proceedings/litigation concerning respondent nos. 8 to 10, which is stated to be not disclosed:-
(a) Appeal from order No. 573 of 2017 and the Civil Application no. 725 of 2017 taken out therein, filed in the Hon'ble Bombay High Court against the said M/s. Dev Engineers.
(b) WP/2167/2015 field by Mr. Chirag Ramesh Shah against M/s. Dev Engineers & Ors. in the Hon'ble Bombay High Court.
(c) WPL/397/2018 filed by M/s. Konark Structural Engineers Pvt. Ltd. against M/s. Dev Engineers in the Hon'ble Bombay High Court.
(d) Income Tax Appeal NO. 1021/Mum/2015 filed by Mr. Pratap Uttam Purohit (Proprietor of M/s. Dev Engineers) in the Income Tax Appellate Tribunal.