BIOHOMES PROJECTS PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is an 'A' Class contractor company with ample experience in different types of construction work. The petitioner had submitted its bid in response to Ext.P2 tender invited by the 1st respondent for the construction of the Iravipuram - Raising and extension of Platform Nos. 1 & 2 and allied works. As per Ext. P3 tender document, the closing date of the tender was 18/11/2024 and the advertised value of the contract is Rs.1,99,81,135.46. Clause 10 of Ext.P2 stipulates the financial eligibility criteria. Subsequently, by Advance Correction Slip No.1, Clause 10.2 of Ext.P2 was corrected. As per the amended financial eligibility criteria, the average annual contractual turnover has to be calculated on the average of the total contractual payments received in the previous three financial years, as per the audited balance sheet. In case the balance sheet is not prepared/audited, the audited balance sheet of the fourth previous year can be considered for calculating the average annual contractual turnover. Since the petitioner's audited balance sheet for the previous year was not approved in the Annual General Body meeting ('AGM', in short), they were not in a position to submit the said document. The petitioner's average annual turnover for the past three years, considering the fourth previous year audited balance sheet, is Rs.2,36,38,978.00. However, respondents 1 and 2 have failed to consider the petitioner's 4th previous year's audited balance sheet. Despite the petitioner satisfying the financial eligibility, the respondents 1 and

(2.) are taking hasty steps to award the contract to the 3rd respondent.. The action of respondents 1 and 2 is tainted with mala fides and arbitrariness. Hence, the writ petition. 2. The respondents 1 and 2 have filed a statement contending that, in response to the tender, they received five bids, including that of the petitioner. The petitioner has quoted the lowest price of Rs.2,35,15,437.04. However, upon evaluating the petitioner's financial eligibility, it was noticed that the petitioner had submitted the audited balance sheets for the financial years ('FY') 2020-21, 2021-22 and 2022-23. There was no mention of the audited balance sheet for the FY 2023-24 in the Annexure VI - B form. Accordingly, the Convenor of the Tender sent Annexure R1(a) letter to the Chartered Accountant who issued Ext.P4 certificate, to ascertain whether the auditing of the balance sheet for the FY 2023-24 was completed. By Annexure R1 (b) reply, the Chartered Accountant confirmed that the auditing of the petitioner's accounts for the above FY was completed on 2/11/2024. The petitioner submitted the bid on 8/11/2024. Since the petitioner's balance sheet for the FY 2023-24 was not submitted with the tender, the Tender Committee resolved to only accept the petitioner's average annual contractual turnover for the FYs 2021-22 and 2022-23. The turnover for the two FYs is Rs.168,69,460.90, which is far below the required minimum average turnover stipulated in Ext.P3 advertised value. Hence, the petitioner has failed to satisfy the financial eligibility criteria. The writ petition is devoid of any merits and may be dismissed.

(3.) The petitioner has filed a reply affidavit stating that, as per Clause 10.2 of Ext.P2, in case the balance sheet of the previous year is yet to be prepared/audited, the audited balance sheet of the fourth previous year can be considered to calculate the average annual contractual turnover. The audited balance sheet of the petitioner was adopted in the AGM of the shareholders only on 21/12/2024, but the tender was submitted on 18/11/2024. In the above circumstances, the audited balance sheet of the FY 2023-24 was not submitted. Nonetheless, if the fourth previous year's balance sheet is considered, the petitioner will be duly qualified. Ext.P4 certificate was produced in Annexure VI-B form along with the tender documents. Hence, the writ petition may be allowed.