Telangana High Court
M/S. Sv Infratech Engineers Pvt. Ltd. vs The State Of Telangana on 5 February, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 23048 OF 2023
O R D E R:
Challenge in this Writ Petition is to the action of Respondents 2, 3, 4 and 5 in selecting the 6th respondent as successful bidder in the tenders issued vide NIT No. 15/2023- 24 of SE/E&M-Il/Stg-1/BTPS concerning Bowl Mills of Unit-l, NIT No. 16/2023-24 of SE/E&M-ISUS-UBTPS concerning Bowl Mils of Uhit-2, NIT No. 17/2023-24 of SE/E&M-Il/Stg-I/BPS concerning Gravimetric Raw Coal Feeders in Unit-1 and NIT No. 18/2023-24 of SE/E&M-II/Stg-1/BTPS concerning Gravimetric Raw Coal Feeders in Unit-2 of Bhadradri Thermal Power Station, thereby in entering into agreements with the 6th respondent's sole proprietorship Mars Engineers & Enterprises and in issuing work orders in their favour as illegal, arbitrary, mala fide, unreasonable, unconstitutional and against the principles of natural justice.
2. Heard Sri. M. Pratheek Reddy, learned counsel for petitioner, Sri. R. Pavan Reddy, learned Standing Counsel for Respondents 2 to 5 and Sri. M. Kiran Reddy, learned counsel for the 6th respondent.
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3. In view of the urgency pleaded by both the parties, present Writ Petition is taken up for final disposal.
4. Learned counsel for petitioner would submit that petitioner is a company registered under the provisions of the Companies Act, 2013, engaged in the work of executing contracts for maintenance, care, erection and repairs. The Company has been long associated with the 2nd respondent and has undertaken several erection and maintenance works in the past. It has previously undertaken the maintenance works for Units-I and II for the financial years 2021-22 and 2022-23 at Bhadradri Thermal Power Station (hereinafter referred to as 'BTPS'). Petitioner executed each and every work that was assigned in the past with utmost diligence and excellence. Petitioner participated in the following tenders in Units-I and II of Bhadradri Thermal Power Station:
a. NIT No. 15/2023-24 of SEEM TUSt-V/BTS: Open tender for "Preventive/Periodical Maintenance works on XP-943 Bowl Mills of Unit as and when required during the year 2023-24" with the bids starting from 15.06.2023 onwards.
b. NIT No. 16/2023-24 of SE/E&M-ll/Stg-1/BPS: Open tender for "Preventive/Periodical Maintenance works on XRP-943 Bowl Mills of Unit-2 as and when required during the year 2023-24" with the bids starting from 15.06.2023 onwards.
c. NIT No. 17/2023-24 of SE/E&M=1/5tBTS: Open Tender For "Preventive/Periodical Maintenance works on Gravimetric Raw Coal 3 Feeders in Unit-l for the year 2023-24" with the bids starting from 16.06.2023 onwards.
d. NIT No. 18/2023-24 of SE/E&M 11/St-I/BTPS: Open tender For "Preventive/Periodical Maintenance works on Gravimetric Raw Coal "Preven in Unit-2 for the year 2023-24" with the bids starting from 16.6.2023.
Similarly, M/s Mars Engineering & Enterprises, a sole proprietorship with the 6th respondent as its Proprietor was also offered to participate in the said tenders. When petitioner viewed the documents submitted by the 6th respondent on behalf of Mars Engineers & Enterprises, it came to know that the said sole proprietorship qualifies in no way whatsoever under the tender document and that documents submitted by it are only misleading, deceptive and inconsonant with the requirements under the tender notifications. Accordingly, petitioner was constrained to issue letter dated 03.06.2023 to the 4th respondent explaining that the 6th respondent's documents are all deceptive and urging the 4th respondent not to consider M/s Mars Engineers & Enterprises for the said tender bidding. Petitioner also submits that it issued representation on 30.06.2023 and on other dates imploring the respondent authorities to rectify the situation and disqualify the 6th respondent. While several assurances were given to petitioner by the different officials working in the 2nd respondent that situation would be remedied, no action was taken by any of 4 the official respondents to rectify the circumstances. Moreover, despite best efforts, officials have refused to provide copies of contract and work order to petitioner. However, without giving any notice or proceedings to petitioner, the 2nd respondent has chosen the 6th respondent's tender bids, surreptitiously entered into contract with it and even issued work orders in its favour under the said four tender notifications in Units I and II for Bowl Mills and Gravimetric Raw Coal Feeders. The 6th respondent performed certain religious rituals at the site and began work on the same day. Having exhausted all the possible remedies available to petitioner before the official respondents, petitioner was constrained to file the Writ Petition questioning the action of the 2nd respondent represented by the 4threspondent in awarding contracts and issuing work orders in favour of the 6th respondent under the said Notices Inviting Tender as illegal, arbitrary, unreasonable, unconstitutional and unsustainable.
5. Learned counsel would submit that the 6th respondent had submitted fraudulent experience documents, experience certificates and related documents for Mars Engineering & Erectors. Furthermore, the said experience is outdated and irrelevant since the same concerns the years between 2014 and 2017 which is no way contemporary for Mars 5 Engineers & Enterprises to use. Learned counsel also submits that sole proprietorship cannot at all utilise the past experience of a partnership firm that ceased to exist far long ago in 2016- 17 itself since there would then exist no complete takeover of the firm with no portion or remnants of the experiential contribution lost or left behind on its transition from being the previous firm to the present sole proprietorship. Even on the e- procurement website, slots against which experience-related documents were to be uploaded only stipulated experience for 2020-21, 2021-22 and 2022-23. Despite the same, the 6th respondent has submitted documents pertaining to Mars Engineers & Erectors for the years before 2017 which are entirely irrelevant and unacceptable. The utter lack of proximity in time between Mars Engineering & Erectors and Mars Engineers & Enterprises clearly demonstrates that the experience enjoyed by the prior partnership firm cannot at all be invoked by the 6th respondent after a lapse of over 6 years. The 6th respondent left behind such works in 2016 itself and undertook several financial enterprises in Khammam which have turned out to be unsuccessful. Therefore, petitioner contends that the 6th respondent has now cleverly colluded with the 5th respondent in tweaking the tender conditions to his favour and achieving the tender by submitting documents that 6 are old, outdated and irrelevant. Learned counsel further attributes that collusion has already become public knowledge among all existing contractors in the region and each of them is severely troubled and aggrieved by the said mala fide and concerted action of Respondents 5 and 6. Therefore, for this reason alone, selection of the 6th respondent for the said work concerning Units-I and II of BTPS is completely unsustainable.
Learned counsel further submits that NIT requires bidders to submit several documents, some of which are statutory in nature such as GST and EPF registrations. However, the 6th respondent had submitted documents for Mars Engineering & Enterprises from October, 2022 only such as GST registration on 16.10.2022, EPF registration on 20.10.2022, ESIC registration on 20.10.2022, Udyam registration on 16.10.2022 and Labour License on 21.10.2022 to enable collusion between Respondents 5 and 6. Similarly, tender document also requires bidders to submit Income Tax Returns and the 6th respondent submitted the said returns in his individual name i.e. Srinivasa Rao Maddula and not in the name of Mars Engineering & Enterprises which is unsurprising since the said entity did not even exist for the previous three years. Further, even in his individual name, returns do not disclose any amounts whatsoever attributable to the kind of 7 work required to be done under the NIT. The meagre amounts existing in the said returns pertain only to rental income and land proceeds. This too shows that Mars Engineering & Enterprise has no commercial history or relevance whatsoever for the 6th respondent to be selected in the tender for the works in Units I and II of BTPS. He submits that most tender documents usually require bidders to have executed similar works for the past 3 years. Similarly, both the above said NITs for bowl mills also require in Clause No. 27(b) that "The contractor shall furnish their copy of Permanent Account Number (PAN) card and copy of latest income tax returns for a period of 3 years i.e. from 2019-20 to 2021-22 along with proof of receipt failing which their e-tender will be summarily rejected." As stated above, there is no way in which Mars Engineering & Enterprises would have been able to submit such documents for the past 3 years when it had been in existence only from October 2023. In addition to this, the official respondents have most illegally and arbitrarily issued a corrigendum to the NITs modifying the said clause to say "The contractor shall furnish their copy of Permanent Account Number (PAN) card and copy of latest income tax returns for a period of 1 year i.e., 2021-22 submitted along with the proof of receipt failing which their e-tender will be summarily rejected." 8 This has been done to benefit and favour the 6th respondent to the disadvantage of every other bidder that had participated.
Learned counsel would further submit that previously, a tender notification was issued concerning
Preventive/Periodical Maintenance works for Bowl Mills of Unit I and petitioner was chosen as the successful bidder. Accordingly, the 4th respondent issued Lr.No: SE/E&M-II/Stg- I/BTPS/F.Doc/D/No: 301/2022 dated 08.05.2023 requesting petitioner to commence work as per the terms and conditions of the e-tender. However, the 4th respondent later issued another letter vide Lr.No: SE/E&M-II/Stg-
I/BTPS/F.Doc/D.No:520/2023 dated 03.06.2023 stating that the said e-tender for bowl mills of Unit-I was cancelled "on administrative grounds" without any notice and that "no further correspondence will be entertained in the matter." Thereafter, a fresh Notice Inviting Tender was issued with No. 15/2023-24 of SE/E&M-ii/Stg-I/BTPS with an amended condition that the participating bidders must have a minimum of three years "overall" experience in the same nature of works. The same is the case with the tender regarding Gravimetric Raw Coal Feeders in Unit-I in which petitioner first emerged successful and then, the 4th respondent cancelled e-tender "on administrative grounds" without any notice. This was done only 9 to benefit the 6th respondent who has brazenly colluded with the 5th respondent, which is a fact now known to all the contractors involved. Likewise, in respect of Unit II, a limited tender was issued on 17.04.2023 and Mars Engineers & Enterprises was invited to participate in the tender. Despite the petitioner being associated with the 2nd respondent for several years undertaking various erection and maintenance works and for Units I & II for 2021-22 and 2022-23 at BTPS, petitioner was not even invited to participate in the said limited tenders for the periodical maintenance of Unit Il for 2023-24, illegally, collusively and arbitrarily, the contract was awarded to Mars Engineers & Enterprises although the 6th respondent does not qualify in any way whatsoever to execute the works involved. Petitioner represented these facts before Respondents 2 and 4, but of no avail. These recent instances concerning Units I & II of BTPS themselves clearly demonstrate the arbitrary, mala fide and highly illegal and irregular manner in which contracts are recently being awarded to the 6th respondent upon his entry into the field.
Learned counsel would submit that in respect of Unit IV in the month of April 2023, petitioner was offered to participate in a single-part limited tender concerning EPC works in Unit IV of BTPS vide NIT No.c-03/2023-24/SE/STAGE- 10 I/BTPS/D.No.78/22-23 dt.18.04.2023 for the work of Preventive/Periodical Maintenance Works on Mills for the FY 2023-24". Although petitioner sent multiple representations to the respondents stating that Mars Engineers & Enterprises qualifies in no way whatsoever under the tender document and that the documents submitted by it are only misleading, deceptive and inconsonant with the requirements under the NIT dt. 18.04.2023, the 2nd respondent represented by the 5th respondent has chosen the 6th respondent's tender bid. Learned counsel finally submits that it is settled law as laid down in multiple precedents that even in contractual matters, the State or "other authorities" are bound to act within the legal limits and their actions are required to be free from arbitrariness and favouritism. The procedure adopted by the State in awarding contracts can be judged and tested against Article 14 and this Hon'ble Court's intervention is necessary when the relevant considerations are ignored or irrelevant considerations are taken into account or when the tender process involves arbitrariness or favouritism. Therefore, petitioner was constrained to file this writ petition praying that this Hon'ble Court may be pleased to inter alia declare the action of Respondents 2, 3, 4 and 5 in selecting the 6th respondent as successful bidder in the tenders issued vide NIT No. 15/2023- 11 23 of SE/E&M-II/Stg-I/BTPS concerning Bowl Mills of Unit-1, NIT No.16/2023-24 of SE/E&M-II/Stg-I/BTPS concerning Bowl Mills of Unit-2, NIT No. 17/2023-24 of SE/E&M-II/Stg-I/BTPS concerning Gravimetric Raw Coal Feeders in Unit-1 and NIT No. 18/2023-24 of SE/E&M-II/Stg-I/BTPS concerning Gravimetric Raw Coal Feeders in Unit-2 of Bhadradri Thermal Power Station, in entering into agreements with the 6th respondent's sole proprietorship Mars Engineering & Enterprises and in issuing work orders in his favour as illegal, arbitrary, mala fide, unreasonable, unconstitutional and against the principles of natural justice.
In support of his contentions, learned counsel relied upon the following judgments:
1. Meerut Development Authority v. Association of Management Studies; (2009) 6 SCC 171.
2. R.D.Shetty v. International Airport Authority of India; (1979) 3 SCC 489.
3. Mahabir Auto Stores v. Indian Oil Corp; (1990) 3 SCC 752
4. MP Power Management Company v. Sky Power Southeast Solar Pvt. Ltd;2022 Supreme (SC) 1170
5. AG Construction Co. v. Food Corporation of India; 2021 SCC Online P&H 306.
6. Learned Standing Counsel appearing for Respondent No.2 to 5 would submit that petitioner did not disclose any valid grounds for grant of any relief and 12 approached this Court suppressing the factual aspects and material objects. He further submits that petitioner has not approached this Court with clean hands, therefore, the Writ Petition need to be dismissed ab initio. Further, petitioner filed this Petition by creating a concocted story only with an intention to harass these respondents without having any legal right, as such it is liable to be dismissed in limini. Learned counsel submits that on keen observation of the averments, particularly para 2, the ill-intension of petitioner discloses that he should be given other works too, without following due process of law, since he had so much of experience in several works entrusted by the Corporation.
Learned counsel would submit that pursuant to the tenders called for Division-Preventive/Periodical Maintenance works on Gravimetric Raw Coal Feeders in Unit-1 for the year 2023-24 by office, the following 3 tenderers submitted in the PQB under e-tender system within the due date. 1) M/s Krishna Engg. Works, 2) M/s S.V. Infratech Engineers Pvt Ltd. and 3) M/s Mars Engineers & Enterprises. After opening the prequalification bids, documents furnished by the above 3 firms are verified in detail and the following remarks were noticed and the same are here with appended below.
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I. In respect of M/s.Krishna Engg Works: The Labor license furnished by M/s. Krishna Engg Works is not in line with the eligibility criteria, however, they have furnished NSIC certificate along with their tender which is not in accordance with the terms and conditions of the Tender. Similarly, the bidder has not paid the requisite EMD as per the terms andconditions of the e-tender specification. They have furnished irrelevant experience documents which are not connected II. In respect of M/s.Mars Engineers & Enterprises: Except the experience certificates furnished by them are in the name of M/s.Mars Engineers & Erectors, other documents are in consonance with the terms and conditions of the Tender. III. In respect of M/s.S.V.Infratech Engineers Pvt Ltd: The documents in respect of experience certificates furnished by M/s.S.V.Infratech Engineers Pvt. Ltd are verified in detail and are in line with the subject work.
After opening the pre-qualification bids, the entire docket comprising all the downloaded documents together with sanctioned estimate is forwarded to DE/BM/Stg-I for offering technical remarks. The DE/BM/Stg-I/BTPS has informed that M/s Krishna Engg. works has not furnished proper experience certificates along with their tender. Therefore, the documents furnished by the firm i.e. M/s Krishna Engg. Works are not eligible as per the terms and conditions of e-tenders and the remaining two tenderers have furnished requisite experience documents along with their tender and got eligibility to evaluate further before the selection committee.
Learned counsel further submits that similarly e- tender was issued for inviting tenders under open tender system in the e-procurement platform as per the delegation of powers Clause 1.15 (A) for Preventive/Periodical Maintenance works on 14 Gravimetric Raw Coal Feeders in Unit-2 for the year 2023-24. In response to it, the three tenderers participated in the PQB under e-tender system within the due date and time. After opening the prequalification bids, the documents furnished by the above firms were verified in detail and the following remarks were noticed.
A. In respect of M/.Krishna Engg Works: The Labour License furnished by M/s. KrishnaEngg Works Is not in line with the eligibility criteria, however, they have furnished NSIC certificate along with their tender which is not in accordance with the terms and conditions of the Tender. Similarly, the bidder has not paid the requisite EMD as per the terms and conditions of the e-tender specification. They have furnished irrelevant experience documents which are not connected with the subject work, B. In respect of M/s. Mars Engineers & Enterprises: Except the experience certificates furnished by them are In the name of M/s.Mars Engineers & Erectors, other documents are in consonance with the terms and conditions of the Tender. C. In respect of M/s.S.V.Infratech Engineers PvtLtd: The documents in respect of experience certificates furnished by M/s.S.V.Infratech Engineers Pvt. Ltd are verified in detail and are in line with the subject work.
After opening the pre-qualification bids, the entire docket comprising all the downloaded documents together with sanctioned estimate is forwarded to the DE/BM/Stg-I for offering technical remarks. The DE/BM/Stg-I/BTPS has informed that M/s.KrishnaEngg works has not furnished proper experience certificates along with their tender. Therefore, the documents furnished by M/s Krishna Engg Works are not eligible as per the terms and conditions of the e-tenders and 15 remaining two tenderers have furnished requisite experience documents along with their tender and got eligibility to evaluate further in price bid category. Likewise, TSGENCO-E&M-I-STG-I- BPS-BM, Division-Preventive/ Periodical Maintenance works on XRP-943 Bowl Mills of Unit-1 as and when required during the year 2023-24, an e-tender was issued under open tender system in the e-procurement platform as per the delegation of powers clause No.1.15 (A). In response to the above, the following 3 Nos tenderers were participated in the PQB under e-tender system within the due date and time.
I. M/s. Chapa Anjali Contractor, Paloncha II. M/s.S.V.Infratech Engineers Pvt Ltd, Khammam III. M/s.Mars Engineers & Enterprises, Paloncha.
After opening the prequalification bids on 28.06.2023, all the documents furnished by the above three firms are verified in detail and the following remarks were noticed and the same are herewith appended below.
A.In respect of M/s. Chapa Anjali Contractor, Paloncha: The documents in respect of experience certificates and other documents furnished are not in line with the eligibility criteria. They have furnished irrelevant experience documents which are not connected with the subject work.
B.In respect of M/s.Mars Engineers & Enterprises, Paloncha:
The statutory documents in respect of eligibility criteria furnished by it are in line with the subject work. But, the experience certificates furnished by them are in the name of M/s.Mars Engineers & Erectors.
C.In respect of M/s.S.V.Infratech Engineers Pvt Ltd, Khammam: The documents and experience certificates furnished by M/s.S.V.Infratech Engineers Pvt Ltd are verified 16 in detail and are in line with the subject work and are acceptable.
After opening the pre-qualification bids, the entire docket comprising all the downloaded documents together with sanctioned estimate is forwarded to the DE/BM/Stg-I for offering technical remarks. The DE/BM/Stg-I/BTPS has informed that M/s Chapa Anjali Contractor, Paloncha has not furnished proper experience certificates along with their tender as such it is not eligible as per the terms and conditions of e-
tenders and directed that the offer may be rejected. Further, it is also informed in their remarks that the remaining two tenderers have furnished requisite experience documents along with their tender and mentioned that they are eligible to evaluate further.
Learned counsel would further submit that TSGENCO-E&M-II-STG-I-BTPS-BM Division-
Preventive/Periodical Maintenance works on XRP-943 Bowl Mills of Unit-2 as and when required during 2023-24, e-tender was issued for inviting tenders under open tender system in e-
procurement platform as per delegation of powers clause No.1.15 (A). In response to the above, the following tenderers participated on 28.06.2023, all the documents furnished by them are verified in detail and the following remarks were noticed.17
A.In respect of M/s.Chapa Anjali Contractor, Paloncha: The documents in respect of experience certificates and other documents furnished are not in line with the eligibility criteria. They have furnished irrelevant experience documents which are not connected with the subject work.
B. In respect of M/s.Mars Engineers & Enterprises, Paloncha:
The statutory documents in respect of eligibility criteria furnished by it are in line with the subiect work But the experience certificates furnished by them are in the name of M/s. Engineering &Erectors.
In respect of M/s.S.V.Infratech Engineers Pvt Ltd, Khammam: The documents and experience certificates furnished by M/s.S.V.Infratech Engineers Pvt Ltd are verified in detail and are in line with the subject work and are acceptable. After opening the pre-qualification bids, the entire docket comprising all the downloaded documents together with sanctioned estimate is forwarded to the DE/BM/Stg-I for offering technical remarks. The DE/BM/Sta-I/BTPS has informed that M/s Chapa Anjali Contractor, Paloncha has not furnished proper experience certificates along with their tender. Therefore, it is not eligible as per the terms and conditions of e- tenders and directed that the offer may be rejected. Further, it is also informed in their remarks that the remaining two tenderers have furnished requisite experience documents along with their tender and they are eligible to evaluate further. Learned counsel would submit that petitioner had also objected for considering the Application of the 6th respondent through its letter dated 03.06.2023. In the above all tenders, M/s Mars Engineers & Enterprises has furnished a self-declaration letter stating that they would be entitled to make use of experience of the erstwhile 18 firm gained therein and requested to consider their e-tender as per the judgments of Hon'ble Supreme Court. In order to get more clarification, they sought help of legal expert vide letter dated 15.06.2023 who clarified that apart from the other aspects, pursuant to judgment passed of the Hon'ble High Court at Delhi in Writ Petition No. 25456 of 2015 dated 02.02.2016, the tender of the 6th respondent may be considered. The contents of the judgment dated 02.02.2016 and the present case are similar. In that judgment, the Hon'ble High Court directed the official Respondents to consider the experience of petitioner who was the managing partner of the erstwhile firm and sole proprietor of the present firm considering that past experience in the erstwhile firm and the present experience as a sole Proprietor. In light of that legal positon, the 6th respondent was considered as one of the two successful bidders initially and was sent to the DE/BM/Stg-I for offering technical remarks along with petitioner bid for further evaluation.
Learned counsel would specifically submit that the 6th respondent was the lowest quoted bidder when compared to petitioner in all the above four Tenders; as such they are very much qualified as L1. In light of above facts, the office of TS- GENCO has requested, pending finalization of e-Tender before the tender committee, the 6th respondent to commence their 19 work in all the aforementioned works as per the terms and conditions of e-tender specification and the instructions of Divisional Engineer/BM/Stg-1/BTPS.
Learned counsel would submit that petitioner did not mention who are those different officials of the 2nd respondent, who gave him several assurances that situation would be remedied. As such mere allegation without proper proof and only on the illusionary vision against the official respondents is not tenable. The copies of contract and work orders are only furnished to the contractor for whom the work is awarded but not to the other unsuccessful bidders/contractors. Further, as per the tender terms and conditions and the decision taken by the tender committee, which was acted in accordance with the law, the lowest bidder was issued work orders for which petitioner need not be issued any notice or proceedings. It is purely between the successful bidder and the official respondents and petitioner being unsuccessful shall not demand of issuance of either notice or proceedings which is nothing but raising new trend against the policy of Tenders. Awarding contract and issuance of work order in favour of the 6th respondent was within the terms and conditions of tenders and also by following due process of law which was not at all 20 illegal, arbitrary, unreasonable, unconstitutional and unsustainable, as alleged by petitioner.
Learned counsel would further submit that clause 'f' of serial No.27 of Tender Notice in all NITs under sub-heading of "Statuary Requirements and Eligibility Criteria" it was clearly mentioned that "The contractor must have minimum three years overall experience in same nature of works". Petitioner without understanding that clause unnecessarily raised objections and irrelevantly alleged the respondents herein. In that clause, it is clear that "overall experience" which does not mean that contractor shall have current continuous three years of experience.
Learned counsel would specifically contend that in the Tender Notification, it was not stipulated to upload experience for 2020-21, 2021-22 and 2022-23, as alleged, whereas, clause (f) of Serial No. 27 and also Clause 5 under the head of "GENERAL TERMS AND CONDITIONS for E-
PROCUREMENT TENDERS ELIGIBILITY CRITERIA" was completely misunderstood by him. Petitioner is also not having sufficient experience in periodical/preventive/breakdown maintenance works for a period of three years, but it has experience only in the field of erection works. The documents 21 furnished in the e-tender platform clearly shows petitioner furnished only two years experience documents instead of three years. However, based on the erection experience, petitioner was considered during technical evaluation. As per TS GENCO Standard general terms and conditions, the tenderer should have experience in executing similar type of work, at least once in the last six financial years including present financial year. Further, it was submitted that either any firm or individual contractors could participate in the tendering process; there are no constraints for individual contractors to participate in the bidding process. These facts are evident from the documents submitted by petitioner himself; as such, the Writ Petition shall be dismissed in limini.
Learned counsel would further submit that in various TS GENCO stations, all the tender-inviting authorities have incorporated IT return clause for a period of one year, whereas, erroneously, it was indicated as three years for NIT Nos.15/2023-24 & 16/2023-24, but in NIT Nos.17/2023-24 & 18/2023-24, clause indicated in the e-tenders as "latest IT return shall be furnished along with proof of documentary evidence". As all the above e-tenders are invited at a glance, providing clause in two different ways mystifying the participants. In this regard, several contractors have contacted 22 over phone the tender-inviting authority and requested to amend the clause as followed by other TS GENCO stations. Therefore, a corrigendum was issued well in advance before opening e-tenders. Petitioner in spite of having knowledge that the respondents have issued a e-corrigendum duly amending the tender notice with regard to statutory requirements & eligibility criteria for item No.27(b) prior to submission of Tenders by the eligible contractors, filed this fictitious Writ Petition in order to harass the respondents. However, it is well known fact that, IT return does not count for purpose of evaluation but only for purpose of knowing the financial status of firm or an individual, so that it would be easy to the Organization to recover from it or him in case any defaults caused during the work by the L1 bidder. In the present case, the 6th respondent submitted Income tax return for financial year 2022-23. Commercial history of tenderer is not the criterion in finalizing lowest bidder but the experience will only be considered including statutory obligations. As such, the allegation raised by petitioner that corrigendum was done to benefit and favour of the 6th respondent is far from truth as such the Writ Petition shall be dismissed at the admission stage itself.
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Learned counsel would submit that corrigendum was delivered to all the open tender agencies including petitioner on e-procurement platform, Telangana and at that time, he did not raise any objection but now for the purpose of obtaining interim order, raised the innocuous allegation. Learned counsel would submit that it is true that petitioner was successful bidder in Preventive/Periodical Maintenance works for Bowl Mills of Unit I, on the other hand, it is not true that the same was cancelled "on administrative grounds" on 03.06.2023 without issuing notice to petitioner herein. In fact, on 03.06.2023 itself, petitioner had given no objection to cancel the aforementioned tenders and requested to invite e-tenders under open category so that other eligible contractors may submit their tenders. Further, it is also true that the successful tenderer i.e the 6th respondent quoted far less than the sanctioned estimates rates. As seen from the overall percentage quoted by L1 tenderer i.e. the 6th respondent noted as - 40.79%,
- 46.81%, -30.30 & -24.84% respectively for e-tenders invited under open tender system vide NIT Nos.15, 16, 17 & 18/2023- 24 which is more beneficial to TS GENCO when compared with the sanctioned estimated rates, whereas L2 firm i.e petitioner quoted overall percentage noted as -6.5%, -6.09%, -6.5%, & - 6,3% respectively for the said e-tenders. When the cancelled e- 24 tenders point of view against e-tenders under limited tender system vide NIT Nos.03, 04, 05 & 06/2022-23, the successful tenderer i.e., petitioner offered only -3.05% & 3.23% in respect Mills & Feeders of Unit-1, whereas another successful tenderer ie. the 6th respondent offered -3.02% & -3.03% respectively in respect of Mills & Feeders of Unit-2, Therefore, cancelling e- tenders invited under limited tender system for inviting fresh e- tenders under open tender category for obtaining competitive prices is justified. The letter dated 03.06.2023 categorically proves that the allegation that tenders were cancelled by the answering respondents without issuing notices to petitioner, is dire suppression of fact on oath before this Court as such the Writ Petition shall be dismissed on the ground that petitioner did not approach this Court with clean hands.
Learned counsel would submit that the allegation that petitioner was not invited for participation in NIT No.2- 02/2023-24/SE/STAGE-II/BTPS/D.No.74/22-23 dated 17.04.2023 is not true. Petitioner misrepresented regarding tenders mentioned in the affidavit filed by petitioner. Any of the answering respondents have never issued NIT No.2-02/2023- 24/SE/STAGE-II/BPS/D.No.74/22-23 dated 17.04.2023. The above tender was issued by the office of Superintending Engineer/Stage-II/BTPS/Manuguru which is no way connected 25 to the present petition. Learned counsel would submit that they came to know that Writ Petition No.19516 of 2023 was filed by petitioner against the aforementioned tender. It is also not true that this Court passed the interim order in the above Writ Petition on 24.07.2023, except issuing notices to unofficial respondents before admission. This was also misrepresented by petitioner in this Writ Petition. Petitioner misrepresented regarding tenders mentioned in the affidavit. Any of the answering respondents have never issued NIT No. c-03/2023- 24/SE/ STAGE-11/BTPS/D.No.78/22-23, dated 18.04.2023. The above tender was issued by the office of Superintending Engineer/Stage-11/BTPS/Manuguru in respect of Unit-IV which is no way connected to the Petition. We came to know that Writ Petition No.19516 of 2023 was filed by petitioner against the aforementioned tender.
Further, the contention of petitioner that authorities acted illegally, arbitrarily and shown favouritism is totally denied. There is no violation of Article 14 of the Indian Constitution. The entire process of tendering is performed legally and petitioner filed this Writ Petition with a mala fide intention and with an ill-motive without having proper reason. The answering respondents have acted in accordance with law and the lowest price bidder was awarded the work as per terms 26 and conditions of tender notification. The tendering process was conducted on e-procurement platform (as per Central Vigilance Commission guidelines) and in a transparent way, duly adhering to the rules and procedures and acted with a bona fide, rational and legitimate way in the tendering process.
Learned counsel for Respondents 2 to 5 in support of their contentions relied upon the following judgments:
1. N.G. Projects Limited v. Vinod Kumar Jain 1
2. Tata Motors Limited v. Brihan Mumbai Electric Supply & Transport Undertaking (Best) 2 2023 SCC Online 671.
3. WP(C).No.10240/2015 - M/s. Bharat Power Control Systems vs. Govt. of NCT of Delhi.
7. In reply to the averments made in the counter affidavit of Respondents 2 to 5, petitioner once again reiterated what has been stated in the writ affidavit, hence it requires no further narration.
8. Learned Counsel for the 6th respondent would submit that the 6th Respondent complied with Clause 27 of NIT in all respects i.e. in regard to Clause 27(a) of the NIT, the 6th respondent uploaded statutory documents i.e. copies of EPF, ESI and GST. Likewise, against Clause 27(b), the 6th respondent uploaded Pan Card and latest IT returns of 1 (2022) 6 SCC 127 2 2023 SCC Online 671 27 Proprietor. Against Clause 27(c), the 6th respondent uploaded copy of labour license of Udyam Registration. Against Clause 27(d), the 6th respondent uploaded copy of registration with Regional Provident Fund Commissioner with independent EPF Code. Against Clause 27(e), the 6th respondent upoloaded ESI Registration with Code. Against 27(f), the 6th respondent uploaded P.O. copies of Mars Engineering and Erectors (erstwhile firm) for four years. Likewise, the 6th respondent uploaded all requisite documents for remaining three tenders also and these documents are enough to meet the eligibility criteria mentioned in NIT, as such, the 6th respondent stood as L1 in all the four tenders by quoting value far less than petitioner, as such, the 6th respondent got selected as successful bidder, whereas, petitioner quoted 6% less in all four tenders.
Learned counsel would submit that petitioner has given false information regarding the documents uploaded by the 6th respondent, who, in fact, uploaded the experience from 2014-15 to 2017-18 consecutively. The contention of petitioner that the slots against which experience related documents were to be uploaded only stipulated for year years 2020-21, 2021-22, 2022-23 is completely false and intended to mislead the Court as such clause is nowhere mentioned in NIT terms and 28 conditions. It is submitted that the 6th respondent is the sole proprietor for MARS ENGINEERS AND ENTERPRISES and managing partner of erstwhile partnership firm MARS ENGINEERING AND ERECTORS which carried out number of works in AP GENCO and TRANSCO for the past two decades up to the satisfaction of field engineers and acquired lots of experience in carrying out the similar nature of works and also been carrying out crucial works which are critical than the subject works in XRP- 943 BOWL MILLS in BTPS at present as sole proprietor in the name and style of MARS ENGINEERS AND ENTERPRISES. By considering the past experience and present status of sole proprietary firm, the sole proprietor of MARS ENGINEERS AND ENTERPRISES can be entitled to utilize past experience of erstwhile firm in tendering process as per above referred construes and there is no need of experience in the same name as the bidding firm as held by the Hon'ble Supreme Court in New Horizon Ltd. Vs. Union of India 3 and also in various Judgments of various Honorable High Courts. Hence, it is evident that the 6th respondent being the sole proprietor of MARS ENGINEERS AND ENTERPRISES is liable to use past experience of erstwhile partnership firm MARS ENGINEERING AND ERECTORS as the 6th respondent acted as Managing 3 (1995) 1 SCC 478 29 Partner and involved in day to day business activities and all other technical, administrative, commercial activities on behalf of the erstwhile firm as it is evident through Clause Nos. 10, 11, 12 of partnership deed and also considering NOC given by the other partner to use experience gained by the firm for any business in this sector run by them as there are only two partners. In New Horizon Ltd. v. Union Of India, the Hon'ble Supreme Court held at para 25 as under:
" 25. Even if it is assumed that the requirement regarding experience as set out in the advertisement dated April 22, 1993 inviting tenders is a condition about eligibility for consideration of tender, though we find no basis for the same, the said requirement for regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualize where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. that does not mean that the earlier experience of one of the partners of the cannot be taken into consideration. Similarly, a company incorporated under the companies Act having past experience can undergo reorganisation as a result of merger of amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganized company. It would not be the purport of the requirement about experience that the experience of the company which has merged into the reorganized company cannot be taken into consideration because tender has not been submitted in its name and has been submitted in the name of the organized company which does not have experience in its name. conversely there may be a split in the company looking after a particular field of the business of the company forma new company after it. The new company, though having persons with experience in the field, has no experience in its name while the 30 original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field."
Learned counsel further submits that petitioner is taking two stands on same issue and the same is liable to be dismissed. In reality the erstwhile firm has stopped the activities in 2017-18 due to the policy adopted by TS GENCO by regularising the workers working at contractors and contract system is almost stopped for maintenance works in the existing plants, until then the 6th Respondent had carried out numerous works in TS GENCO by resolving day-to-day challenges in the plants successfully and for the interest of generation in plants. Learned counsel would vehemently submit that there is no need to check the commercial history as nowhere NIT terms and conditions demand it, except the interest of petitioner in wasting the valuable time of this Court and it is clearly evident that petitioner raised allegations regarding the above only in frustration due to unsuccessful in bidding and due to rivalry with the 6th respondent who stood as L1 in biddings, the same is invented for purpose of the filing this writ petition. Learned counsel would further submit that condition in NIT No.e-15, 31 e-16 which are floated on 15.06.2023, regarding IT which states that "the IT returns of prior three years are to be uploaded" is nowhere in the tenders floated by tendering authorities of all the power generating stations of TS GENCO, and also in the tenders floated by the other circles of BTPS even. Surprisingly, this conditions is not even there in the tenders floated in the same circle prior to these two tenders and tenders floated immediately after these two tenders like e-17 & e-18 which are floated on 16.06.2023 (immediately next day) except in these two tenders. The tendering authorities realized that, some irrelevant condition regarding IT was incorporated in NIT conditions and immediately they have corrected by issuing corrigendum on 20.6.2023. Learned counsel would finally submit that the official respondents have not made any favouritism or benefit to the 6th respondent as alleged by petitioner and the allegations raised by them that the official respondents have colluded with the 6th respondent is completely baseless, reasonless, absurd and totally unethical and the same is invented for the purpose of the writ petition. Learned counsel also submits that there is no public interest and substantial proof for the allegations made regarding mala fides and arbitraries except grudge on the 6th respondent.
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9. In reply to the averments made in the counter affidavit of the 6th respondent, petitioner has once again reiterated what has been stated in the writ affidavit, hence, it requires no further narration.
10. It is an admitted fact, Respondent Nos. 2, 3, 4 and 5 selected the 6th respondent as successful bidder in the tenders issued vide NIT No. 15/2023-24 of SE/E&M-Il/Stg-1/BTPS concerning Bowl Mills of Unit-l, NIT No. 16/2023-24 of SE/E&M-ISUS-UBTPS concerning Bowl Mils of Uhit-2, IT No. 17/2023-24 of SE/E&M-Il/Stg-I/BPS concerning Gravimetric Raw Coal Feeders in Unit-1 and NIT No. 18/2023-24 of SE/E&M-II/Stg-1/BTPS concerning Gravimetric Raw Coal Feeders in Unit-2 of Bhadradri Thermal Power Station, thereby, official respondents entered into agreements with the 6th respondent's sole proprietorship Mars Engineers & Enterprises and issued work orders in his favour. The mandatory documents mentioned in the tender notification are for the purpose of supporting only but not for qualification criteria since the nature of tender invited is limited single stage commercial bid for which no pre-qualification is required. The same fact is known to petitioner and in the affidavit, the same was mentioned by him. As such, the allegations levelled against the answering respondents that respondents have not issued 33 any reply to the letter issued by petitioner dated 03.06.2023 wherein petitioner informed that the documents submitted by the 6th respondent are misleading, deceptive and inconsonant and also the 6th respondent is not eligible because the firm owned by the 6th respondent is having sole Proprietorship. It is pertinent to mention here that petitioner himself has knowledge that nature of tender is only a limited one and no pre- qualification is required. Petitioner had also objected for considering the application of the 6th respondent through its letter dated 03.06.2023. In the above all tenders, M/s Mars Engineers & Enterprises furnished a self-declaration letter stating that they would be entitled to make use of experience of the erstwhile firm gained therein and requested to consider their e-tender as per the previous judgments of Hon'ble Supreme Court. In order to get more clarification, authorities have also sought the help of legal expert vide letter dated 15.06.2023, who clarified that apart from the other aspects and pursuant to the judgment of the Hon'ble High Court at Delhi in Writ Petition No. 25456 of 2015 dated 02.02.2016, the 6th respondent tender may be considered. In that judgment, the Hon'ble Delhi High Court directed the official respondents to consider the experience of petitioner, who was the managing partner of erstwhile firm and sole proprietor of the present firm considering that past 34 experience in the erstwhile firm and the present experience as a sole proprietor. In the light of that legal position, the 6th respondent was considered as one of the two successful bidders initially and was sent to the DE/BM/Stg-I for offering technical remarks along with petitioner bid for further evaluation. Further, this Court on perusal of the record found that the 6th respondent was lowest-quoted bidder when compared to petitioner in all the above four tenders. As such they are very much qualified as L1 in the light of the aforementioned facts and circumstances. Hence, the office of TS-GENCO has requested, pending finalization of e-Tender before the tender committee, the 6th respondent to commence their work in all the aforementioned works as per the terms and conditions of e- tender specification and as per the instructions of Divisional Engineer/BM/Stg-1/BTPS. Interesting part is that petitioner did not mention who are those different officials of the 2nd respondent who gave him several assurances that the situation would be remedied. As such, mere allegation without proper proof and only on illusionary vision against the official respondents is not tenable. Copies of contract and work orders are only furnished to contractor for whom the work was awarded but not to the other unsuccessful bidders/contractors. Further, as per tender terms and conditions and as per decision 35 taken by the tender committee, which was acted in accordance with law, the lowest bidder was issued work orders for which petitioner need not be issued any notice or proceedings. It is purely between successful bidder and official respondents and petitioner being unsuccessful shall not demand issuance of either notice or proceedings to him which is nothing but raising new trend against the policy of tenders. Awarding of contract and issuance of work order in favour of the 6th respondent was within the terms and conditions of Tenders and also by following due process of law which was not at all illegal, arbitrary, unreasonable, unconstitutional and unsustainable as alleged by petitioner.
11. This Courts identifies that clause 'f' of serial No.27 of Tender Notice in all NITs under sub-heading "Statuary Requirements and Eligibility Criteria", it was clearly mentioned that "The contractor must have minimum three years overall experience in same nature of works". Petitioner without understanding that clause unnecessarily raised objections and irrelevantly alleged the respondents. In that clause, it was clear that "overall experience" which does not mean that contractor shall have current continuous three years of experience. In the Tender Notification, it was not stipulated to upload experience for 2020-21, 2021-22 and 2022-23 as alleged by petitioner, 36 whereas, clause (f) of Serial No. 27 and also clause 5 under the head "GENERAL TERMS AND CONDITIONS for E-
PROCUREMENT TENDERS ELIGIBILITY CRITERIA" was completely misunderstood by petitioner. Petitioner is also not having sufficient experience in periodical/preventive/breakdown maintenance works for a three years, but it has experience only in the field of erection works. The documents furnished in e- tender platform clearly shows petitioner has furnished only 2 years of experience documents instead of 3 years. However, based on the erection experience, petitioner was considered during technical evaluation of e-tenders. As per TS GENCO Standard general terms and conditions, tenderer should have experience in executing the similar type of work, at least once in the last six financial years including present financial year. There are no constraints for individual contractors to participate in the bidding process. It was stated that in various TS GENCO stations, all the tender-inviting authorities have incorporated IT return clause for a period of one year, whereas, erroneously, it was indicated as three years for NIT Nos.15/2023-24 & 16/2023-24. But in the NIT Nos.17/2023-24 & 18/2023-24, the clause indicated in the e-tenders as "latest IT return shall be furnished along with proof of documentary evidence". As all the above e-tenders are invited at a glance, providing clause in two 37 different ways mystifying the participants. In this regard several contractors have contacted over phone the tender-inviting authority and requested to amend the clause as followed by other TS GENCO stations. Therefore, a corrigendum for NIT Nos.15/2023-24 & 16/2023-24 was issued well in advance before opening e-tenders. Petitioner in spite of having knowledge that respondents have issued e-corrigendum duly amending tender notice with regard to statutory requirements & eligibility criteria for item No.27(b) prior to submission of tenders by the eligible contractors filed this fictitious Writ in order to harass the respondents. According to NIT, the IT return does not count for purpose of evaluation but only for the purpose of knowing the financial status of the firm or an individual so that it would be easy to the Organization to recover from it or him in case any default caused during the work by L1 bidder. In the present case, the 6th respondent submitted Income tax return for the financial year 2022-23. Commercial history of tenderer is not the criterion in finalizing lowest bidder but experience will only be considered including statutory obligations. As such the allegation raised by petitioner that corrigendum was done to benefit and favour of the 6th respondent is far from truth. The corrigendum was delivered to all the open tender agencies 38 including petitioner on e-procurement platform, Telangana and at that time, petitioner did not raise any objection.
12. The other aspect is that it is true that petitioner was successful bidder in Preventive/Periodical Maintenance works for Bowl Mills of Unit I, whereas, it is not true that the same was cancelled "on administrative grounds" on 03.06.2023 without issuing notice to petitioner. In fact, on the said date itself, petitioner had given no objection to cancel the aforementioned tenders and requested to invite e-tenders under open category so that other eligible contractors may submit their tenders. Further, it is also true that the successful tenderer i.e the 6th respondent quoted far less than the sanctioned estimates rates. As seen from the overall percentage quoted by the L1 tenderer i.e the 6th respondent noted as - 40.79%, -46.81%, -30.30 & -24.84% respectively for e-tenders invited under open tender system vide NIT Nos.15, 16, 17 & 18/2023-24 which is more beneficial to TS GENCO when compared with the sanctioned estimated rates, whereas L2 firm i.e petitioner quoted overall percentage noted as -6.5%, -6.09%,
-6.5%, & -6,3% respectively for the said e-tenders. When the cancelled e-tenders point of view against e-tenders under limited tender system vide NIT Nos.03, 04, 05 & 06/2022-23, the successful tenderer i.e., petitioner offered only -3.05% & 3.23% 39 in respect Mills & Feeders of Unit-1, whereas another successful tenderer ie. The 6th respondent offered -3.02% & -3.03% respectively in respect of Mills & Feeders of Unit-2, Therefore, cancelling the e-tenders Invited under limited tender system for inviting fresh e-tenders under open tender category for obtaining competitive prices is justified. The letters dated 03.06.2023, categorically prove that the allegation that tenders were cancelled by the answering respondents without issuing notices to petitioner, is untenable.
13. The 6th respondent contends that in view of the judgment in New Horizon Ltd.'s case, the 6th respondent being the sole proprietor of MARS ENGINEERS AND ENTERPRISES is liable to use of past experience of erstwhile partnership firm MARS ENGINEERING AND ERECTORS as the 6th respondent acted as Managing Partner for that and involved in day to day business activities and all other technical, administrative, commercial activities on behalf of erstwhile firm as it is evident through Clause Nos. 10, 11, 12 of partnership deed and also considering the NOC given by the other partner to use experience gained by the firm for any business in this sector run by them as there are only two partners. In New Horizon Ltd.'s case (supra), the Hon'ble Supreme Court held at Para 25 (extracted supra).
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14. The same view was taken into consideration in many judgments delivered by the Hon'ble High Court of Andhra Pradesh in S. Kireetendranath Reddy Vs. A.P. Transco, Vidyut Soudha 4, Avula Contractions Pvt. Ltd. Vs. Senior Divisional Electrical 5, Hon'ble High Court of Madhya Pradesh in C.K. Asati Vs. Union of India 6, Samruddha Buildcon Pvt. Ltd. Vs. Indore Development Authority and the Hon'ble High Court of Bombay in Sagar Lookouts Vs. Maharastra Housing and Area 7 and M/s Ims Bhatia Transport Vs. The Union of India 8. Therefore the contention of petitioner that the 6th respondent is ineligible to participate in the tender process is not tenable and accordingly, the said contention is hereby rejected.
15. This Court also feels that petitioner unnecessarily mounted undue pressure upon the answering respondents and since the tendering process is lawful, no higher authorities have shown any favouritism to the 6th respondent. Petitioner levelled frivolous and baseless allegations against the official respondents who acted legitimately during tender process and petitioner had approached the Hon'ble Court by suppressing all 4 1999 (2) ALD 398 5 1999(3) ALD 105 6 AIR 2005 MP 96 7 2022 SCC Online Bom 10434 8 2021 SCC online Bom 3675 41 material facts with ill-intention to harass the respondents. It is borne out by record, since this Court has not granted any interim stay with respect of awarding of work, so far, the 6th respondent had already commenced work and at this juncture interference of this Court in any manner is unwarranted. The same view is also countenanced by the decision of Hon'ble Supreme Court in N.G. Projects Limited vs. Vinod Kumar Jain, wherein the Hon'ble Supreme Court at Para 16 to 23 held as under:
[16] In Galaxy Transport Agencies v. New J.K.
Roadways,2020SCCOnLineSC 1035 a three-judge bench again
reiterated that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. It was observed as thus:
"17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word "both" appearing in Condition No. 31 of the N.I.T. For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.
18. Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala 42 fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in JagdishMandal v. State of Orissa, 2007 14 SCC 517, this Court noted:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:" the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.43
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the presentday economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfer20 ing in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."
16. In the considered opinion of this court, the entire process of tendering is performed legally and without any arbitrariness and there is no violation of principles of natural justice. The tendering process was conducted on e- procurement platform (as per central vigilance commission 44 guidelines) and in a transparent way. The tender has only a single part i.e., price bid and does not have a prior prequalification or technical evaluation stages. Similarly, Mars Engineering& Enterprises, a sole proprietorship with the 6th respondent as its proprietor was also offered to participate in the said tenders. The 6th respondent quoted 40% less in NIT No.15/2023-24, likewise quoted 45% less in NIT No.16/2023- 24, and quoted 30% Less in NIT No.17/2023-24, 25% less in NIT No.18/2023-24, whereas, petitioner quoted nearly 6% less in all the above tenders, as such, the 6th respondent stood as L1 and became successful bidder. The official respondents are strictly in consonance with the rules and procedures, and acted with a bona fide, rational and legitimate way in the tendering process. The official respondents have acted in accordance with law and the lowest price bidder was awarded with the work as per the terms and conditions of the tender notification. Further, as held by the Hon'ble Apex Court in the N.G.Projects Limited's case, the approach of this Court should not be to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision- making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that tender has been granted in 45 a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct execution of contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."
17. This Court also opines that petitioner approached this Court with unexplained delay, as such this Court does not show any inclination to interfere in the light of the judgments of Hon'ble Apex Court mentioned supra and also more particularly in the matters pertaining to awarding of contracts pursuant to tender process. This Court also opines that tender process adopted and awarding of work to the 6th respondent is not mala fide or intended to favour someone and the decision made by official respondents is by acting reasonably and in accordance with conditions stipulated in the tender document, therefore the decisions cited by learned counsel for petitioner are not applicable to the facts of the present case. The Writ Petition is therefore, liable to be dismissed.
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18. In the result, the Writ Petition is dismissed. No costs.
19. Consequently Miscellaneous applications if any shall stand closed.
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NAGESH BHEEMAPAKA, J 05th February 2024 ksld