M/S. Ahmed Rickshaw And Cycle ... vs The State Of Telangana And 2 Others
2021 Latest Caselaw 1059 Tel

        THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

                 WRIT PETITION No.1740 of 2020
ORDER:

The present Writ Petition is filed questioning the action of the

respondent Nos.2 and 3 in declaring the tender applications

submitted by the petitioner in response to the Tender Notice No.

84/CTO/GHMC/2019-20, dated 18.12.2019, for Kukatpally and

Moosapet, for fabrication and supply of tricycles with garbage box,

as technically not qualified without assigning any reasons in

writing and without considering the experience of the petitioner in

the field, as illegal and arbitrary.

The case of the petitioner, in brief, is that the petitioner has

been carrying on the business of sale of cycles, tricycles,

fabrication, spare parts, etc., for the last 20 years. The respondent

No.2 issued the impugned tender notification seeking e-tenders for

fabrication, supply and delivery of tricycles with garbage box along

with one partition of standard make for transporting MSW (garbage)

wet & dry for the year 2019-20. The last date for submission of

e-tenders is 27-12-2019 before 3.00 p.m. In response to the same,

the petitioner submitted e-tenders vide ID Nos.158927 and 158930

for Kukatpally and Moosapet circles, duly enclosing experience

certificate, income tax returns, proof of supplying of tricycles to the

respondents and other departments, etc. without paying any

Earnest Money Deposit as the petitioner was exempted from paying

EMD for all the tenders issued by the Department of Industries.

The grievance of the petitioner is that without assigning any

reasons, the respondents have rejected the tender application of the

petitioner on opening Technical bid. On coming to know about the

same, the petitioner submitted representations to respondent Nos.2 2 AAR, J W.P.No.1740 of 2020

and 3 on 23.01.2020 and 24.01.2020 respectively, requesting them

to furnish the reasons for rejection. However, no orders are passed

thereon till date and even orally also the authorities have not

informed the petitioner the reasons for rejection of his bid. Hence,

left with no other option, the present writ petition is filed.

Respondent No.3 filed a counter on behalf of the respondents

stating that on verification of the documents, uploaded by the

petitioner, it was found that the documents such as Turnover

Certificate, Income Tax Returns and Experience Certificate were not

furnished by the petitioner as stipulated by the respondents.

Further, as per the tender notification, no exemption was given to

any participant for payment of EMD. The tender submitted by the

petitioner was mainly rejected by the respondent authorities on the

ground of not furnishing the required documents and in prescribed

proforma stipulated in the tender document and there is no

illegality or arbitrariness in the same.

Heard both sides and perused the material available on

record.

The learned counsel for the petitioner has contended that the

copies of Work Orders uploaded by the petitioner are enough to

show that the petitioner had the required Work Experience.

On the other hand, the learned Standing Counsel has

contended that the petitioner is obligated to file Experience

Certificate i.e. Certificate issued for satisfactory supplies of goods

made against the Work Orders issued by any of the Tender inviting

Authority in the proforma prescribed in the tender document. But

however, the petitioner has uploaded the copies of mere Work

Orders, which cannot be equated as Experience Certificate.

Learned Standing Counsel has further stated that the petitioner 3 AAR, J W.P.No.1740 of 2020

has uploaded the Turnover Certificates issued by the Chartered

Accountant for the financial years 2013-14, 2014-15 and 2015-16

as against the requirement of certificates for the years 2016-17,

2017-18 and 2018-19. The learned Standing Counsel has drawn

the attention of this Court to the tender conditions and also relied

on the judgment of a Division Bench of this Court in W.A.No.1595

of 2018, dated 06.12.2018 to contend that unless and until the

petitioner submits required documents in the prescribed proforma,

the technical bid has to be rejected. Learned Standing Counsel has

also submitted that having participated in the tender bid, the

petitioner is obligated to follow the terms and conditions of the

tender document and he cannot question either the procedure or

the proformas, which are prescribed by the authorities. In these

circumstances, the respondent authorities have rightly rejected the

tender bid of the petitioner. There are no merits in the writ petition

and the same is liable to be dismissed.

To appreciate the facts in the present writ petition, it is

important to extract the relevant conditions of the tender

notification, which is the subject matter of the writ petition. The

respondent No. 2 issued tender document No. 84/CTO/GHMC/

2019-20, dated 18.12.2019 seeking e-tenders from the prospective

bidders for Fabrication, supply and delivery of Tricycles with

garbage box along with one partition of standard make for

transporting MSW (garbage) wet & dry for the year 2019-20. The

eligibility criteria for participating in the tenders are as follows:

3) ELIGIBILITY CRITERIA:

a) The bidder shall be Manufacturers, SSI Units, Authorized Distributors/Dealers and Reputed Experienced Fabricators of Tricycles are eligible to participate in the Tender.

b) In case the bidder is authorized distributor/dealer, the bidder should have experience in 4 AAR, J W.P.No.1740 of 2020

completion of one similar work in any State/Central Govt./Semi-Govt./PSU Departments/ULBs. (Annexure- II).

c) The bidder should have minimum turnover of (approx. 50% of budgeted value) in any one year during the last (3) consecutive financial years of 2016-17, 2017-18 & 2018-19. As per Annexure-IV.

d) The bidder shall submit the IT Returns (FY 2016-17, 2017-18 & 2018-19).

e) xxx

f) xxx

The requirement for submission of bids is as follows:

7) SUBMISSION OF BIDS:

a) xxx

b) Technical bid:

The bidder shall submit the Technical bid in the Technical Bid form as per the Annexure-I. Further the following self-signed/scanned copies of the original certificates/documents showing his/her eligibility as per the eligibility criteria at clause 3 of Instructions to Bidders shall be uploaded along with the Technical bid.

i. Company registration certificate in case of manufacturer under relevant act and Authorization certificate issued by the respective manufacturer in case of its distributor/dealer.

ii. Details of previous experience as per Annexure- II duly attached with supporting documents.

iii. Certificate issued by a registered Chartered Accountant as a proof of having requisite turnover.

iv. IT returns Certificates submitted to the IT Department.

v. xxx vi. xxx"

A perusal of the documents filed by the petitioner reveals that

he has simply filed the copies of Work Orders, namely (i) Supply

Order No. 2107/A.C.(H&S)/SWM/GHMC/2014, dated 23.06.2014,

issued by Greater Hyderabad Municipal Corporation; (ii) Work

Order No. 10/ PD/SSBM(G)/Tri-cycles/2015, dated 19.12.2015

issued by Rural Water Supply and Sanitation Department; and (iii)

ENDT No. 1902/ B3/2015, dated 25.06.2015 issued by Industries

Department. Besides the said documents, the petitioner has filed

the Income Tax returns for the financial years 2017-18, 2018-19

and 2019-20. He has also furnished the turnover of the firm 5 AAR, J W.P.No.1740 of 2020

certified by the Chartered Accountant for the period 2013-14 to

2015-16.

The specific case of respondent No. 3 is that the petitioner

has not fulfilled the conditions of eligibility which are prescribed

under the tender document. As per the tender document, the

petitioner is obligated to file the Work Experience Certificate, as per

Annexure-II of the tender document. That the petitioner should

have minimum turnover for the financial years 2016-17, 2017-18

and 2018-19 as per Annexure-IV of the tender document, and the

bidder shall also submit the Income Tax Returns for the financial

years 2016-17, 2017-18 and 2018-19. The petitioner has not

submitted the Work Experience Certificate, as prescribed under

Annexure-II, instead, he has merely submitted Work Orders and

the same cannot be equated with the Work Experience Certificate,

as required under Annexure-II of the tender document. Moreover,

instead of furnishing the Income Tax Returns for the financial

years, 2016-17, 2017-18, 2018-19, the petitioner had submitted

the Income Tax Returns for the financial years 2017-18, 2018-19

and 2019-20. The turnover of the company/firm, for the financial

year 2016-17, 2017-18 and 2018-19 should be as per Annexure-IV

of the tender document. But contrary to the same, the petitioner

has filed the Work Orders, which are not in tune with Annexure-IV.

The learned Standing Counsel has stated that when the tender

document prescribes that the documents should be submitted in a

particular manner, the same has to be followed scrupulously and

the petitioner cannot submit the documents such as Turnover

Certificate or the Work Orders as per his whims and fancies and

expect the authorities to consider the same as equivalent to the

prescribed documents. Moreover, the petitioner cannot rely on the 6 AAR, J W.P.No.1740 of 2020

Work Orders, either issued by the Department, or any other Agency

in order to equate the same with the Work Experience Certificate,

which should be in the form prescribed in Annexure-II of the tender

document. Just because the petitioner was issued with Work

Order, that does not mean that he has successfully completed that

particular work or that the Agency/Department, to which he has

supplied the goods, was satisfied with the work executed by the

petitioner. Whereas, the Work Experience Certificate is issued only

when the supply has been completely successful to the satisfaction

of the Agency/Department, which has issued the Work Order. In

view of the same, the learned Standing Counsel has prayed this

Court to dismiss the writ petition.

A Division Bench of this Court in M/s. Sai Ram

Constructions v. State of Telangana1 while dealing with a tender

matter, where the tenderer had not submitted the Solvency

Certificate in the prescribed proforma, has held as under:-

"...the petitioner, being a contractor, is regularly doing business with the Government and is expected to know the prescribed form in which the solvency certificate is appended to the bid document. The word 'solvency' has different connotations. The solvency certificate means a certificate issued by the banker on the ability to discharge ones debts and obligations in full; describing a person for company in a state of solvency. Solvency further means ability to discharge the debts and obligations in full, the state of a person who is able to pay all his debts; as also such state of property as that it may be reached and subjected by process of law without his consent to the payment of such debts. The literal meaning of solvency certificate is stated to conclude that the solvency certificate appended by the petitioner does not comply with the fundamentals of solvency. The respondent has discretion and is entitled to reject a tender, if not submitted as per the requirements of the tender document...."

In Silppi Constructions Contractors V. Union of India and

another2, at para 20, the Hon'ble Supreme Court observed as

under:

2019 (2) ALT 157 2 (2019) SCC Online SC 1133 7 AAR, J W.P.No.1740 of 2020

"The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity."

Insofar as tender matters are concerned, the scope of

interference by the Courts in Writ Petitions filed under Article 226

of the Constitution of India is limited. This Court as well as the

Apex Court in number of occasions repeatedly held that wherever a

particular procedure is prescribed, the same has to be scrupulously

followed. The petitioner, who is well aware of the prescribed

procedure, ought to have submitted the required documents in the

prescribed proformas and there is no explanation whatsoever as to

why the same was not submitted. It is abundantly clear from a

perusal of the documents submitted by the petitioner that the

documents, as submitted by the petitioner along with the tender

document, are not as per the Annexures prescribed in the tender

document. On this ground alone, this Court does not find any

reason to interfere with the action of the respondents in declaring

the petitioner as not qualified for participating in the tender

process.

The writ petition is accordingly dismissed.

Miscellaneous petitions pending in this writ petition, if any,

shall stand closed. There shall be no order as to costs.

                                                     ________________________
                                                     A.ABHISHEK REDDY, J
Date :01-04-2021
Sur/tsr
 8               AAR, J
    W.P.No.1740 of 2020