HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.21577 of 2021
ORDER :
This Court has heard learned counsel for the petitioner,
Government Pleader for Finance, Government Pleader for
Energy, Sri Y.Nagireddy represented by Sri Siva Rama Krishna
and Sri V.R.Reddy Kovvuri, for the unofficial respondents.
The petitioner before this Court is questioning the action of
respondent No.3 in awarding a tender/contract in favour of
respondent No.5 for spot billing works.
Learned counsel for the petitioner has pointed out that in
a tender for the year, 2021 also, the work was awarded to the 5th
respondent and this was questioned in W.P.No.18539 of 2020.
An interim order was also passed, which is not complied with
leading to a contempt also. A second tender dated 04.08.2021
was also floated. The petitioner participated in it. However, this
tender was cancelled by the respondent No.3 without assigning
any reasons. Thereafter, a new tender dated 24.08.2021 was
floated. According to the petitioner's counsel, a new condition
was introduced, wherein they stated that bidders who quoted
below 0% and 5% on administrative charges will be treated as
non-responsive. The petitioner participated in this tender also.
All the bidders were asked to participate in a reverse auction on
31.08.2021. All the bidders participated in the same. But,
thereafter, the results of the bidding were not announced and on
14.09.2021, it is informed to everybody that the work was 2
awarded to responding No.5. This is questioned in the Writ
petition.
It is alleged that the reverse tendering is not according to
the Government Orders on the subject. It is also stated that
since the petitioner quoted 0% for the tender work and did not
charge any profit, going in for reversing tendering is also not
correct. It is also argued that the tender conditions have been
changed to suit 5th respondent.
For the answering respondents, Sri Siva Rama Krishna
argued on behalf of Sri Y.Nagireddy. He states that this is a
peculiar case where a short tender notice dated 23.08. 2021 was
floated to attend to the spot billing works. It was the found on
the opening of the tenders that all the bidders quoted 0% on
administrative charges and all the bidders stood as L.1. Even
during the reverse tendering, the same situation was there.
Therefore, in this peculiar circumstances, respondent No.5 was
awarded the work. Learned counsel also relies upon the case
law, which is mentioned in the counter affidavit stating that in
the absence of any mala fides and bias being proved, the Courts,
in particular, the writ courts should sparingly involve
themselves and grant interim orders in matters of tender.
According to him, relying upon the case law, which he is cited,
even if there are minor deviations in the absence of mala fides,
the Court should not interfere.
In the case on hand, it is submitted that all the bidders
were afforded clear opportunity. Petitioner also participated in 3
the tender process, but is now questioning the amendment of
clause, which deals with 0% to 5% administrative charges. As
per the counsel, the petitioner's conduct estops him. The
petitioner himself quoted for these rates and is raising an issue
about the reverse tendering after participating in the same.
Learned standing counsel submits that there is neither mala
fides nor any other motive in awarding the work to respondent
No.5. Basing on the past performance and in view of the urgency
involved, the work was awarded to respondent No.5. It is also
submitted that the substantial period is also expired and the
contract would also come to an end by 31.08.2022.
For the 5th respondent, Sri V.R.Reddy Kovvuri appears and
argues the matter. He also submits that once the petitioner
participated in the tender dated 21.08.2021 he cannot
questioned the terms. The same argument is repeated in so far
as reverse tendering is concerned since the petitioner also
participated in the reverse tendering. Learned counsel submits
that in view of the peculiar fact, namely that all the tenders were
L.1, the respondents to use their discretion and award the work
to respondent No.5. Learned counsel therefore submits that in
the absence of any proof of mala fide or arbitrariness, this Court
should not interfere and should allow the work to go ahead.
This Court after considering the submissions notices that
there is no dispute about the essential fact that a short tender
was floated on 21.08.2021. It is also clear from the record that
this tender had to be floated in view of the cancellation of the
earlier tender and the need to fix a new agency from 01.09.2021. 4
In this interim period between 24.08.2021 and 01.09.2021, the
tenders were called for and evaluated. Thereafter, on opening of
the price bids and in the reverse tendering also, all the tenderers
quoted 0% administrative charges and thus all of them stood as
L.1.
In the facts and circumstances of the case, the counter
states that after verifying the documents and the counters in
executing similar works, the order was placed on respondent
No.5.
As stated earlier, this is a peculiar case, where everybody
quoted the same rate. Therefore, it is stated that discretion was
exercised to award the work to respondent No.5 considering his
past experience and the documents filed. In view of the settled
law on the subject, which need not be repeated into, if the Court
finds any mala fides or arbitrariness in the decision making
process, it can interfere in a tender matter. Both of these are
matters of clear pleading and proof. The petitioner has not
pleaded and proved the arbitrariness or mala fides. In fact, for
mala fides, standard proof is very high. This is the law that
exists since 1975 as per the celebrated decision of E.P.
Royappa v. State of Tamil Nadu and Ors1.
In the present case, neither is there adequate pleading of
mala fides nor is there clear proof.
In a very recent judgment of the Hon'ble Supreme Court in
Civil Appeal No.1846 of 2022, M/s.N.G.Projects Limited v.
1 AIR 1074 SC 555 5
M/s.Vinod Kumar Jain2, Supreme Court after examining the
case law held as follows:
"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 present-day 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 interfering 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."
In view of this latest judgment of the Hon'ble Supreme
Court, this Court holds that this Court should refrain itself from
interfering in this matter. The Court does not find total
arbitrariness or that a tender has been granted in a mala fide
2 2022 Live Law (SC) 302 6
manner. The necessary 'play' in the joints should be given to
the respondents to choose a contractor for the spot billing work.
In that view of the matter, this Court holds that the
petitioner has not made out a case for interference. It is hoped
that in view of the peculiar fact situation, the respondents would
introduced appropriate charges in the future tenders to meet
such contingencies.
The writ petition is, therefore, dismissed. No order as to
costs. As a sequel, the miscellaneous petitions, pending if any,
shall stand closed.
________________________
D.V.S.S.SOMAYAJULU,J
Date : 02.05.2022
KLP
