[Electric Bus Tender] Bombay High Court upholds disqualification of TATA Motors by BEST

The Bombay High Court on Tuesday upheld the decision of Brihanmumbai Electric Supply and Transport Undertaking (BEST) to disqualify TATA Motors Limited from a tender bid for operating electric buses [TATA Motors v. The Brihanmumbai Electric Supply and Transport Undertaking (BEST) & Anr.].The decision of BEST was challenged by TATA in a writ petition which was decided by a division bench of Justices SV Gangapurwala and Madhav Jamdar today.“The Petitioner (TATA) has deviated from the material and the substantial term of the tender. TATA, as such, is rightly disqualified for deviating from the material requirements stipulated in the tender” the order stated.The Bench also held that the decision of BEST to hold the bid of other company Evey Trans responsive, was incorrect and suggested BEST to issue fresh tender if required.”We set aside the decision of the Respondents of acceptance of tender of Respondent No.2 (Evey). Respondent No.1 (BEST), if it so desires, may proceed with fresh tender process”, the Bench held..BEST had issued tender inviting bids for operation of State Carriage Services for public transport of 1,400 single decker AC electric buses in the city of Mumbai and extended suburbs on gross cost contract model for 12 years.The plea by TATA Motors challenged a May 6 decision by BEST allegedly declaring TATA's bid as 'technically unresponsive' for supposedly deviating from tender specifications.TATA claimed in its plea that it had submitted the technical and financial bid for the tender after a pre-bid meeting in which it had requested BEST to modify certain tender specifications, which BEST did based on the suggestion.BEST meanwhile published the technical suitability evaluation of the tender and, according to TATA, wrongly declared their bid as 'technically non-responsive'.TATA contended that BEST’s declaration was arbitrary as they had selectively relaxed conditions of the tender for another bidder, Evey Trans Pvt Ltd, by allowing interruption in charging time and waiving off the requirements of matching of rates for evaluation of bids, TATA motors claimed..BEST stated at the outset that since there was no stay on the process, it had issued Letters of Acceptance to Evey Trans Pvt Ltd, the competing bidder with TATA.The reply highlighted that TATA’s bid, by their own admission, contained deviations which did not fulfil the requirement or specification of tender and such bids became “technically non-responsive for BEST. The petitioners (TATA) consciously chose to submit a technically non-responsive bid, BEST contended."The decision of Respondent no 1 (BEST) in declaring Petitioner's (TATA Motors) bid as 'technically non-responsive' is based on the bid by Petitioner and the same is final and binding," the reply underscored. BEST replied that since there were no deviations in the bid, the bid by Evey Trans was deemed ‘technically responsive’..BEST further said in its reply that TATA had deviated from the conditions to the extent that it was going to submit the models after testing them under simulated conditions using the ‘Automative Industry Standards (AIS)’ measure.However, BEST wanted the buses to have been tested under ‘Actual Operating Conditions’ (AOC) which meant, the number of people being carried, the road conditions and the traffic were all required to be tested.BEST contended that in the event they accept the AIS tested models and post such acceptance if they face any issues with the models, then they would not have any remedy..Senior Advocate Abhishek Manu Singhvi briefed by Karanjawala & Co. and Lexicon Law Partners appeared for TATA Motors.Senior Advocate Venkatesh Dhond with Advocates Nirav Shah, Anjan Dasgupta and Jash Shah briefed by DSK Legal appeared for BEST.Advocates Somshekhar Sundaresan, Rohan Cama and Anshul Anjarlekar briefed by Raval-Shah & Co. appeared for Evey Trans..[Read judgement]