M/S SRI VISHNU SRIRAMA CONSTRUCTIONS Vs. THE ANDHRA PRADESH EDUCATION & WELFARE INFRASTRUCTURE DEVELOPMENT CORPORATION

JUDGEMENT

(1.) The petitioner-firm-M/s Sri Vishnu Sri Rama Constructions rep. by its Managing Partner (for short, 'petitioner-firm') is a registered Contractor. The 1st respondent is the Andhra Pradesh Education & Welfare Infrastructure Development Corporation (for short, 'APEWIDC'). On behalf of the 1st respondent supra, its Superintendent Engineer (4th respondent) invited tenders for construction of A.P. Social Welfare Residential School at B.Mattam of Kadapa District vide NIT No.295/SE/ APEWIDC/ KDP/AE/2016-17,dt.05.11.2016. The petitioner-firm and two others submitted tenders and the 4th respondent opened the technical bid on 12.12.2016 and found all the three bidders are qualified and on the same day, having opened the price bid, submitted same to the 3rd respondent-the Chief Engineer and Chairman, APEWIDC(R.1) who has to refer the same to Tender Committee (2nd respondent) represented by its Principal Secretary, Social Welfare Department, Govt. of Andhra Pradesh, for the cost of the work is more than 2 Crores and however the Tender Committee rejected the tender of the petitioner-firm and disqualified it by forfeited the EMD of 1% and also suspending from participating in tenders up to 31.03.2017 on the ground that the petitioner-firm failed to furnish two ongoing works in the Statement-IV of tender schedule. It is the grievance of the petitioner-firm therefrom in seeking the relief more particularly in the nature of relief of writ of mandamus declaring the rejection of the bid of the petitioner-firm and disqualifying and suspending from participation in the tenders of APEWIDC upto 31.03.2017 and forfeiting the EMD as per communication by the 1st respondent by memo,dt.23.01.2017 and letter of intimation of the same to the 4th respondent pursuant thereto, dated 24.01.2017 as illegal, arbitrary and unsustainable with a consequential direction to accept the bid of the petitioner-firm and to award the work in its favour and to pass such other order/s.

(2.) The averments further in support of the writ petition prayer are that the petitioner-firm fulfilled the qualification prescribed under clause-14 of the tender notice with bid capacity as per Formula(2AN-B) and furnished particulars in the formats enclosed supported by documents and in the Statement-IV of the formats of the existing commitments i.e. works on hand and works for which bids are submitted to be mentioned is to be evaluated bid capacity of the bidder, that the petitioner-firm has the bid capacity of 35.06 crores as per the information furnished in Statement-IV which is more than the tender value of Rs.15,69,38,030.00 and the Tender Committee, having opened the price bid of the petitioner-firm and others and found the petitioner-firm is the lowest quoted bid of 5.39% less than the other bidders. The petitioner-firm in the Statement-IV furnished details of 15 ongoing works and three works of which tenders submitted and however by oversight, it has not mentioned two ongoing works of Rs.4,04,63,454.00 (Rs.3,22,61,439.00+Rs.82,02, 015.00) and pursuant to the notice issued by the 3rd respondent dated 04.01.2017 the petitioner firm furnished the details of the two works not mentioned in the Statement-IV and from its adding available bid capacity of Rs.31,01,74,164.00 is more than the tender value and fulfilled the criteria and the 3rd respondent pursuant to which even recommended to the Tender Committee, which concluded that the non-mentioning of the two ongoing works in the Statement-IV amounts to furnishing of false/fraudulent certificates with tender which is a disqualification and disqualified, though the petitioner-firm is found to be L-1 in price bid. It is also the contention that even as per the conditions of tender notice after opening of the technical bid and price bid, the tender opening authority opened the price bid and sent to 3rd respondent for evaluation and submission to the Tender Committee, which called for certain details from the 3rd respondent, on which the 3rd respondent issued notice to the petitioner-firm and obtained value of other two ongoing works which were not mentioned in the statement-IV. On furnishing the value of other two ongoing works, the available bid capacity of the petitioner-firm is more than tender value, the 3rd respondent has recommended to the Tender Committee to consider the bid of the petitioner-firm. Even as per the conditions of tender notice, after opening the technical bid and price bid, the tender opening authority or the evaluating authority can call the bidder for clarification of the statements and once the petitioner-firm clarified on the Statement-IV by furnishing other two ongoing works originally not mentioned, it shows that the petitioner-firm has no intention to mislead the Tender Committee. There is even nothing of false statement or fabricated document furnished that too even if those two works included by the petitioner-firm with bid capacity that was also taken into consideration by the 3rd respondent, the decision of the Tender Committee in disqualifying the petitioner-firm under sole ground for the furnishing of incomplete information which has actually no effect on the bid capacity of the petitioner-firm is thereby arbitrary. It is also the contention that it is not only the disqualification of the petitioner-firm but also suspended from tendering works in the APEWIDC and that too, without issuing notice and opportunity, suspended for tendering works besides forfeiting 1% EMD by violation of the principles of natural justice, hence the order of disqualification, suspending from participation and forfeiting of 1%EMD is contrary to law, illegal and arbitrary and thereby to set aside the same and order of interim suspension of the proceedings and consequently direct the 2nd respondent to accept the bid and award the work and pass such other orders.

(3.) The learned Standing Counsel for the respondents represented by the Managing Director of 1st respondent Corporation filed counter affidavit on behalf of the respondents by denying the writ petition averments and with the contentions impugning the maintainability of the writ petition and justifying the action and disentitlement to any reliefs, that the Social Welfare Department of Govt. of Andhra Pradesh accorded administrative sanction for the construction of 5 A.P.Social Welfare Residential Schools on permanent basis under Rural Infrastructure Development vide G.O.Ms. No.22, Social Welfare (RS2),Department,dt.20.02.2016 and the residential School at B Mattam, Kadapa district is one among the 5. The Secretary of the Society requested the 1st respondent to instruct the Chief Engineer of respondent Corporation to call for tenders for construction of residential schools that shall be completed within 12 months vide letter dated 24.10.2016 of 4th respondent. Consequently the 4th respondent invited tenders with an ECV of Rs.15,69,38,030.00 dated 05.11.2016 through e-procurement, where under 5 tenders were received and the petitioner-firm is one of such bidders. As per the technical bid evaluation, 3 bidders were qualified including the petitioner-firm from technical bids opened on 30.11.2016 and the price bids opened on 09.12.2016. The 4th respondent evaluated the tenders received to the subject work and recommended the petitioner-firm as qualified and the matter placed before the Tender Committee(2nd respondent) which met on 04.01.2017 and while the matter is under process, certain firms have participated in the tenders to the subject work, represented to the 3rd respondent stating that NIC conditions were not followed while declaring the successful tenderer who have not qualified saying without verification of NIT conditions the officers opened the tenders and declared the petitioner-firm as if successful tenderer and thereby the tenders for work has to be cancelled and re-tenders to be called for by following the procedure. It is pursuant to the said representation received by the 3rd respondent, the 3rd respondent referred to the 4th respondent for a detailed report by memo dated 17.12.2016 and the matter placed before the 2nd respondent for consideration with the information received on 04.01.2017, there the 2nd respondent-Tender Committee directed the R.1-Corporation to verify the complaint with concerned executive agency/bidder and to place before the Committee on 11.01.2017, thereafter the 3rd respondent issued letters to all bidders L.1 to L.3 which include the petitioner-firm on 04.01.2017 requesting to attend office of the Corporation with concerned documents in person on 06.01.2017 and they attended the 3rd respondent but not submitted/disclosed about the particulars with regard to works on hand. It is therefrom on verification of the complaint with concerned Department, the 4th respondent submitted in his report that the petitioner-firm has not shown the works on hand in Statement-IV of the tender conditions and the allegation made by L.2-firm in this regard is genuine and correct vide letter, dated 06.12.2017 and the matter when placed before the Tender Committee-R.2 on 11.01.2017, the Committee, after examining the work-wise details observed that all the three bidders furnished incomplete information by suppressing works on hand in Statement-IV of the tender document in their bids and the bidder should submit the works invariably as specified in the tender schedule with necessary conditions failing which tender can be treated as incomplete and liable to be summarily rejected. Thus Tender Committee in its meeting held on 11.01.2017, after due examination, decided all the 3 bidders L.1(Petitioner-firm) to L.3 treated disqualified and forfeited the EMD and suspended them from tendering the works in the APEWIDC upto 31.02017 and directed the R.1-Corporation to recall the tenders for the work through short tenders. Keeping in view of the Tender Committee minutes, the 1st respondent-Corporation issued orders directing the 4th respondent to take further action in terms of the decision of the Tender Committee, dated 201.2017 and in turn R.4 intimated to the petitioner-firm and the other two bidders and requested the bank authorities concerned to release the bank guarantee submitted by them to the Corporation account by letter, dated 24.01.2017. It is the further contention in the counter affidavit that to qualify for consideration of award of the contract, the tenderer should fulfil the qualification information listed at page- 237 of the bid document, signed by the petitioner-firm, wherein point No.17 referred to statement of existing commitments in ongoing Government works along with supporting experience certificates as in Statement-IV, the petitioner-firm furnished incomplete information by suppressing certain work details on hand which is very clear that it wilfully breached the tender conditions and is liable for disqualification in terms of self-declaration given by the petitioner-firm automatically. The petitioner-firm and the other two bidders have not declared the complete list of works on hand and thereby once failed to abide by the tender conditions even they quoted bid price the lowest, not entitled to be considered. It is thereby disqualified the petitioner-firm, forfeiting the EMD and suspending to participate in tendering the works up to 31.02017 not only the petitioner-firm and other two bidders also and the contrary averments are untrue and unsustainable as it is from the complaint received against the petitioner-firm and on verification and finding the suppression of the material, the action is taken by rejection of the tenders among other bonafides since the petitioner-firm concealed the facts and submitted incomplete information and thereby not fulfilled the tender conditions and suffered disqualification therefrom and the action is since genuine and proper and no way arbitrary and illegal and no way questionable. It is also the further averment that the tender conditions can be classified into two categories one is essential conditions on eligibility and the other is mere ancillary and subsidiary and in case of non-compliance of essential conditions of eligibility, it is an automatic disqualification of the tenderer that too the tender essential conditions clause-11 says all details should be noted in the columns 1 to 8 of the statements which are mandatory and once the essential conditions are not fulfilled by suppression of information, the tender is liable to be rejected from the disqualification apart from action, hence the writ petition is liable to be dismissed. It is also the submission in the counter affidavit that there is no violation of principles of natural justice in view of the above factual matrix and the contrary averments are untrue and the tender was issued fixing time bound schedule to complete the residential school construction within 12 months as any delay in completion of the project will cause harm to the students community for lack of accommodation and further it is only to complete the process, the respondents are forced to call for short tender notice to complete the work in the larger interest of the student community and because of the interim orders on 31.01.2017 restraining the respondents in finalization of the short tender notice, dated 30.07.2017, the further progress could not be made and the interim order is liable to be vacated, otherwise it will cause loss to the state exchequer also besides effecting career of the students and seeking to vacate the interim order and dismiss the writ petition.