Mumbai Gets Heavy Monsoon, Better Tech For Rehabilitation Of 100 Yrs Old Storm Water Drains Can't Be Avoided Merely Due To Extra Cost: Bombay High Court

A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne added that merely because the better technology involves extra cost compared to other available technology, use of the better technology cannot be avoided.

“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”, the court held.

The court upheld a condition in a tender for storm water arch drainage rehabilitation floated by BMC (respondent no. 1) which required builders to use geopolymer trenchless technology for the work.

The petitioner company Gypsum Structural India Pvt. Ltd. challenged the tender process for rehabilitation of 100-year-old storm water arch drains in Mumbai including five years of comprehensive maintenance. The tender condition required use of geopolymer lining trenchless technology.

The petitioner claimed that an American company GeoTree Solutions (respondent no. 2) has developed GeoSpray geopolymer brand and has a monopoly in use of geo polymer technology. The tender conditions are made to favour GeoTree Solutions as only the bidders procuring the geopolymer technology would be eligible to bid, the petitioner claimed.

Initially the tender condition provided for “GeoSpray geopolymer technology”, but that was later replaced with “geopolymer trenchless technology”.

The petitioner participated in pre-bid meetings but did not submit its bed. It objected to use of only geopolymer technology. BMC went ahead with the tender procedure and opened the technical and financial bids. Therefore, the petitioner filed the present writ petition seeking cancellation of the tender process.

The court noted that the tender condition provides for a specific technology and not a particular brand.

IIT Bombay compared Geopolymer Technology with Machine Wound Spiral Lining and Veermata Jijabai Technological Institute compared four technologies. Both opined that the geopolymer lining system is best suited for rehabilitation of storm water arch drains over the other technologies. Though they have used the GeoTree branded geopolymer technology for their tests, they have not recommended use of a particular brand of geopolymer technology, the court said.

The court noted that the BMC is not blindly relying on IIT’s report obtained by a third party. Rather it independently solicited IIT’s opinion.

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

The court noted that the petitioner itself has brought on record the existence of GeoKrete, another brand of geopolymer trenchless technology. Therefore, the court rejected its contention that GeoSpray brand has monopoly in 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.

Additional costs involved in adopting chosen technology would not lead presumption of favouritism towards GeoTree, the court said adding that GeoTree is not even a bidder.

The court noted that there is no restriction on bidders to procure geopolymer technology only from GeoTree Solutions and held that the allegation of favouritism towards GeoTree is completely unfounded.

Therefore, the court did not find arbitrariness, bias, or favouritism on BMC’s part and refused to interfere in BMC’s decision based on expert opinion.

The court further held that since the petitioner did not submit its bid, it is a stranger to the tender process and cannot challenge it. It could have procured geopolymer trenchless technology from available sources and participated in the tender process, but choose not to, the court noted.

Case no. – Writ Petition (Lodging) No. 4209 of 2023

Case Title – Gypsum Structural India Pvt. Ltd. and Anr. v. Brihanmumbai Municipal Corporation and Ors.

Citation: 2023 LiveLaw (Bom) 171