HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
WRIT PETITION No.17303 of 2021
ORDER:
The petitioner has been working as a Diet Contractor. He submitted his bid in the Tender Notification No.986/B.4/2021- 2022, dated 19.06.2021, issued by the 4th respondent, for supply of diet to the Government Hospital, Kakinada. The tender had two parts viz., technical bid and financial bid. The technical bid was opened on 14.07.2021. However, the financial bid of the petitioner was not opened while the financial bids of some of the other participants were opened. Aggrieved by this action, the petitioner had now approached this Court by way of W.P.No.14233 of 2021. This writ petition was closed on the ground that the tender had been cancelled and a fresh tender process was being initiated.
2. The petitioner had again bid for the fresh tender, which was issued under a Notification, dated 17.07.2021. In this tender process, the technical bids of all the participants in the tender process, was opened. However, the petitioner came to know that his technical bid was not being processed and the tender was being taken to the stage of financial bid. Aggrieved by the non consideration of his bid, the petitioner has approached this Court by way of the present writ petition.
3. Sri Kochiri Rajasekhar, learned counsel for the petitioner assails the entire tender process on various grounds. He contends that the tender could not have been issued by the 2 4th respondent, who is the Superintendent of the Government General Hospital as G.O.Ms.No.325 Health, Medical and Family Welfare (M1) Department, dated 01.11.2011, which gives the guidelines for the tendering process for the award of Diet contracts stipulates that it is the District Diet Management Committee, which will be responsible for calling the tenders. He further contends that that the experience certificate and other certificates produced by the petitioner would be sufficient to give the petitioner more than 70 marks, which is the bench mark for considering the financial bids of the persons, who qualify for the technical bid. He submits that non allotment of a minimum of 70 marks to the petitioner is highly arbitrary and high handed.
4. The learned Government Pleader has now produced the record of the evaluation committee. The learned Government Pleader submits that the technical bid is considered by way of a two stage process. In the first stage, the bids of the tenderers are verified to ascertain whether all the technical bid conditions set out in the tender document (internal page 6) are complied with. After verification, only the bids of those tenderers, who have complied with all the technical bid conditions, are taken up for evaluation of the technical bid where marks are awarded as per the criteria set out for evaluation of technical bids set out at internal page 6 of the tender document.
5. The learned Government Pleader submits that the bid of the petitioner was rejected at the stage of considering the conditions itself. This was because the petitioner had not furnished the GST Registration Certificate as well as the EPF 3 and ESI Registration Certificates which are necessary Technical Bid conditions. He submits that on account of the non submission of these three certificates, the technical bid of the petitioner was rejected and the bid of the petitioner did not go to the second stage of the evaluation at all.
6. Sri Kochiri Rajasekhar, learned counsel for the petitioner submits that EPF and ESI Registration Certificates were not filed. However, he states across the bar that GST Registration Certificate was filed. He further contends that none of these conditions were there in G.O.Ms.No.325 and as such, these conditions cannot be placed as a bar for considering his bid.
7. The first objection of the learned counsel for the petitioner that the tender could not have been issued by the 4 th respondent has to be rejected in view of the judgment of the Division Bench in W.A.No.86 of 2021 dated 29.07.2021, wherein a tender notification issued by the Superintendent of Government Hospital, in a similar situation, was upheld.
8. A Diet Committee appears to have met on 14.07.2021 for considering the bids under the earlier tender process and after considering the fact that all the three qualified bidders had offered the same price had terminated the tender proceedings. Thereafter, the Joint Collector had asked for tenders to be called again by issuance of a fresh notification.
9. The second contention of Sri Kochiri Rajasekhar, learned counsel for the petitioner that the requirement of filing 4 ESI and EPF Certificates cannot be insisted upon as there was no such condition in G.O.Ms.No.325 also, cannot be accepted. The petitioner having participated in the tender process cannot turn around and contend that certain conditions are arbitrary or high handed. When the petitioner has participated after full knowledge of the tender conditions and without demur, the petitioner cannot now turn around and contend that the tender conditions should not be taken into account.
10. The tender conditions clearly require the bidders to submit EPF and ESI certificates along with the certificate of Registration for GST. There is some controversy as to whether the GST certificate has been filed or not. However, there is no controversy that the ESI and EPF certificates have not been filed.
11. In the circumstances, the rejection of the bid of the petitioner on account of non compliance of the tender conditions cannot be faulted.
12. Accordingly, the writ petition is dismissed. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J.
23.08.2021 RJS 5 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.17303 of 2021 23-08-2021 RJS