IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.09.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.691 of 2009 and W.P.M.P.No.1 and 2 of 2009 A.Srinivasalu ... Petitioner Vs. The Chief Engineer, High Ways, Metro, Alandur, Chennai 600 016. ... Respondents PRAYER: Writ of Certiorarified Mandamus calling for the records relating to the tender for the work No.4 in Tender Notice:4/2008-2009/SDO dated 11.11.2008 on the file of the respondent quash the same and direct the respondent to conduct retender in respect of work No.4. For petitioner : Mr.S.Duraisamy For Respondents : Mr.P.Subramanian, AGP O R D E R The petitioner is an unsuccessful bidder in a Tender. He has challenged the Tender Notice dated 4/2008-2009/SDO dated 11.11.2008, on the file of the Chief Engineer, Highways, Metro, Alandur, Chennai, the respondent, relating to widening single lane to double lane and strengthening of Ramapuram  Pakkam Road Km 0/0  9/2 (Two Cover System). 2. According to the petitioner, he is a class-I contractor, under the Highways Department. Pursuant to the notification, in Tender notice dated 11.11.2008, calling for the tenders for execution of five works of which the petitioner is interested in work No.4. The cost of the work is Rs. 326 lakhs, i.e., the approximate value of the work. Referring to the Tender notice, Mr.S.Duraisamy, Learned counsel for the petitioner submitted that, the last date for submitting the Tender Schedule is 12.12.2008, and as per the notification, the Tender will be opened on the same day, on 12.12.2008 at 3.30 p.m. 3. He further submitted that the petitioner waited in the respondent office, on 12.12.2008 for the opening of the tender. The respondent instead of opening the tender, told the contractors present at the time the tender that it would be opened at a later date, for which sufficient intimation would be given. Learned counsel for the petitioner further submitted that though, the petitioner had requested to intimate the date and time of opening the tender, he was not given any reply. He further contended that, on 09.01.2009 the respondent without informing to the petitioner, has opened the tender and that the offer made was 117% of the estimate rate. He contended that, the respondent has manipulated the tender documents to help some other tenderer. 4. Referring to section 8 of the Tamil Nadu Transparency in Tenders Act, learned counsel for the petitioner submitted that, the Tender Inviting Authority ought to have opened the tenders in the presence of all tenderers present, and who have submitted the tenders in such time and in such place, as may be specified in the tender document. 5. Learned counsel for the petitioner further submitted that, as per rule 21 of the Tender Transparency Rules, the time specified for the opening of the tender shall be immediately after the closing time specified for the respective tenders, allowing the reasonable period, the said period should not exceed more than one hour, for the transportation of the tenders received to the place where there are to be opened. In the case on hand, as per the Tender notice the time fixed for opening of tender was 3.30 p.m on 12.12.2008, and even by application of Rule 21 sub rule(2), the time limit cannot be extended more than one hour which is meant for transportation of tenders. 6. Referring to the definition, "Tender" under Section 2(f) of the Act, he submitted that Tender means, "formal offer made in pursuance of an invitation by the procuring entity" and it refers to only a price bid and not the evaluation of the prequalification by the Inviting authority. According to him, as the specified time in the tender notification has not been adhered to by the respondent, there is a violation of statute and the rules, and hence, the impugned notice has to be set aside. 7. Based on the counter affidavit filed by Chief Engineer Highways, Metro, Alanthur, Chennai, Mr.P.Subramanian, Learned Additional Government Pleader submitted that, as per G.O.Ms.No.80/Highways (HN1) Department, dated 28.03.2007, whenever, the value of the work is more than two crores, than a Two-Cover system has to be followed. As per the Two-Cover system, the tenderers are required simultaneously to submit two sealed covers, one containing the Earnest Money Deposit, and the details of their capability to undertake the tender, which will be opened first, and the second cover containing the Price Quotation, which will be opened only if, the tenderer is found qualified to execute the tender; means a procedure under which the tenderers are required to simultaneously submit two sealed covers, one containing the Earnest Money Deposit, and the details of their capability to undertake the tender, which will be opened first, and the second cover containing the Price Quotation, which will be opened only if, the tenderer is found qualified to execute the tender. 8. According to the learned counsel for the respondent, as per the procedure contemplated under the rules and G.O., stated supra, as per the above said G.O. the tender box was opened on 12.12.2008 at 3.30 p.m, as per the time specified in the Tender notice and that there was no change. The tenderer (or) his representative was not present at the time of opening. As per the procedure, i.e., after evaluating the technical bid for prequalification, the tenderers are qualified were intimated the date of opening of the price bid would be opened on 09.01.2009 at 12.15 p.m in the office of the Chief Engineer(H), Metro, Alanthur, Chennai-16. 9. Learned counsel for the State further submitted that those who were not qualified in the pre- qualification were also intimated while returning the price bid document which remained unopened. Besides, postal intimation to those who were qualified the bid opening date was also displayed in the notice board. In support of his contention that proper intimation has been sent to all the tenderers, he produced the relevant register. 10. Learned counsel for the respondent further submitted that, the petitioner has offered 117% of the estimate rate, whereas, the selected candidate has offered 105% of the estimate rate, and now after negotiations he has agreed to do the work of widening the road at 72% of the above estimate rate. He further submitted that, the Tender notice has been opened following the procedure contemplated under law, as per the statutory provisions and that there is no contravention. He also submitted that all other works notified are now in progress, except the work of widening of the road i.e., subject matter of the Writ petition alone is being delayed on account of the pendency of this Writ petition. For the above said reasons he prayed that the Writ petition be dismissed. 11. Heard the learned counsel for the parties and perused the materials available on record. 12. The Tamil Nadu Tansparency in Tenders Act, 1998 is an Act, to provide for transparency in the public procurement and to regulate the procedure inviting and accepting tender and matters connected therewith or incidentally thereto. 13. As per section 2(f) of the above said Act, "Tender" means, a formal offer made in pursuance of an invitation by the procuring entity. Section 8 of the Act deals with opening of tender and it reads as follows; "The Tender Accepting Authority or any other officers authorised by it, shall open the tenders in the presence of tenderers present, and who have submitted the tenders in such time and in such place as may be specified in the tender document". 14. Rules framed under the above said Act are called as, Tamil Nadu Transparency Rules 2000, as per rule 2(d), pre-qualification means, "The process by which the tenderers are first screened for their capability and resources to implement the contract before they are permitted to offer their tenders". 15. As per rule 2(e) Two-Cover System means, "A procedure the tenderers are required simultaneously submit two sealed covers, one containing the Earnest Money Deposit, and the details of their capability to undertake the tender, which will be opened first, and the second cover containing the Price Quotation, which will be opened only if, the tenderer is found qualified to execute the tender; means a procedure under which the tenderers are required to simultaneously submit two sealed covers, one containing the Earnest Money Deposit, and the details of their capability to undertake the tender, which will be opened first, and the second cover containing the Price Quotation, which will be opened only if, the tenderer is found qualified to execute the tender". 16. There is no dispute that in so far as work No.4 widening single lane to double lane and strengthening of Ramapuram  Pakkam Road Km 0/0  9/2 that the notification itself states that it is a Two-Cover System, because as per the tender notification the cost of the work is 326 lakhs i.e., the approximate value of the work. 17. Pleadings disclose that, the tender box was opened on 12.12.2008 at 3.30 p.m as per the time specified in the Tender notice and neither the tenderer namely, the petitioner (or) his representative, were present at the time of opening the tender. As per the procedure contemplated under the Two-Cover system the technical bid for pre-qualification was opened on 12.12.2008 and having satisfied the eligibility criteria, the respondent in their letter No.8-20/2008/SDO dated 30.12.2008 has communicated to the tenderers both qualified and unqualified, that the price bid opening would be made on 09.01.2009 at 12.15 p.m in the office of the Chief Engineer (H) Metro Alanthur, Chennai. The register produced before this Court, shows that an intimation has been sent to the petitioner and other tenderers intimating the date of bid-opening. Tender means, only an offer, it is something which invites and is communicated to invite acceptance. Under two cover system, the a procedure the tenderers are required simultaneously submit two sealed covers, one containing the Earnest Money Deposit, and the details of their capability to undertake the tender, which will be opened first, and the second cover containing the Price Quotation, which will be opened only if, the tenderer is found qualified to execute the tender; means a procedure under which the tenderers are required to simultaneously submit two sealed covers, one containing the Earnest Money Deposit, and the details of their capability to undertake the tender, which will be opened first, and the second cover containing the Price Quotation, which will be opened only if, the tenderer is found qualified to execute the tender. 18. The evaluation of the capability and resources of the tenderers to be made by the procuring authority and this process certainly requires sometime. Unless the evaluation is done and the qualified tenderers are short-listed, it may not be possible to finalise the tender in accordance with the statutory provisions and the rules framed thereunder. To expect both the covers to be opened at the same time, and to complete the whole process of finalising the tender is not possible. The petitioner being a class-I contractor, should be aware of the procedure followed under Two-Cover System. Without satisfying the prequalification evaluation, no tenderer has the right to insist that both the covers should be opened at the same time. In a given case a person who has not satisfied the qualifications, but tendered a low cost, cannot expect that the contract should be awarded to him. The register produced before this Court shows that intimation has been sent to the tenderers, but petitioner has not turned up at the time of bid opening . It is also stated that, the price bid opening date was displayed in the notice board of the office of the respondent. 19. It is further stated that, the selected person has offered a price bid of 105% above the estimate rate and on private negotiation he has agreed to undertake the work at 72% of the said rate. It is also stated that, excepting the work of widening single lane to double lane and strengthening of Ramapuram  Pakkam Road Km 0/0  9/2 (Two Cover System), and all other works notified under the Tender notice have commenced. In these circumstances, I do not find that that there is any manifest illegality or bias in the selection process. The time mentioned in the Tender notice has been properly followed and therefore, the contentions of the petitioner are not accepted . 20. Hence the Writ petition is dismissed. Consequently, the connected Miscellaneous Petitions is also dismissed. No costs. 15.09.2009 Index :Yes/No Internet :Yes/No nb To The Chief Engineer, High Ways, Metro, Alandur, Chennai 600 016. S.MANIKUMAR,J. nb Writ Petition No.691 of 2009 and W.P.M.P.No.1 and 2 of 2009 15.09.2009