Bombay HC reserves order on L&T plea over exclusion from bidding process for MMRDA tunnel and road projects

The Bombay High Court is considering L&T's challenge against MMRDA's decision to open financial bids for two major infrastructure projects without L&T's presence, after deeming their technical bids non-responsive.
MUMBAI: The Bombay High Court vacation bench on Thursday closed for orders a petition filed by construction major Larsen & Toubro (L&T) to challenge the opening of financial bids without its participative presence as a bidder for two projects: one a tunnel and the other an elevated road from Thane-Ghodbunder to Bhayander.
It is touted as 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 Mumbai Trans Harbour Link (Atal Setu) saw L&T playing the lead role in its construction.
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 informed once the bidder is finalised after the opening of financial bids. There were around five bidders overall, the court was informed.
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.
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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 Montecarlo said, '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…'

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