THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.4134 of 2011 Dated 11th August, 2011 Between: M/s.Sri Geethanjali Enterprises …Petitioner And The Superintending Engineer (R & B), Circle Guntur, Guntur District and another …Respondents Counsel for the petitioner: Sri Mummaneni Srinivasa Rao Counsel for respondents: GP for R & B The Court made the following: ORDER: This writ petition is filed for a mandamus to set aside tender process initiated through tender notice, dated 09.02.2011, by the respondents in respect of (a) special repairs to Chilakaluripeta – Pedanandipadu road from km 1.000 to 6.000 and (b) special repairs to vent road dam in km 2/2 of Chilakaluripet – Sandepudi road (hereinafter referred to as ‘the subject work’), without cancelling the previous tender process, as illegal and arbitrary. Respondent No.2 has issued tender notification, dated 10.11.2010, calling for tenders for execution of the subject work. The petitioner has filed its tender, which happened to be the sole tender for the subject work. Respondent No.1 has forwarded the petitioner’s tender with recommendations to respondent No.2 vide letter, dated 07.12.2010. By proceedings, dated 19.01.2011, respondent No.2 has rejected the petitioner’s tender by placing reliance on Clause-11 of G.O.Ms.No.94, I & CAD Department, dated 01.07.2003, and Clause- 3.4 of bid conditions under “Instructions to Tenderers”. As a consequence of the said decision, respondent No.1 has called for fresh tenders on 09.02.2011. The petitioner has filed the present writ petition aggrieved by the above actions of the respondents. At the hearing, Sri Mummaneni Srinivasa Rao, learned counsel for the petitioner, submitted that his client is admittedly the sole tenderer, who satisfied the eligibility criterion stipulated in e- procurement tender conditions and that therefore, the respondents are not justified in cancelling the entire process and calling for fresh tenders. The learned counsel further submitted that before cancelling the previous tender process¸ the respondents have not issued any notice to the petitioner and that therefore, the action of the respondents is in violation of principles of natural justice. The learned Government Pleader for R & B appearing for the respondents, opposing the above contentions, submitted that respondent No.2 having examined the recommendations of respondent No.1 passed the order on 19.01.2011 on the ground that the petitioner has failed to satisfactorily work relating to “Improvements to Madras – Calcutta road from KM 404.230 to 405.600 in Guntur District (APRDF Scheme)”, which led to the determination of the contract on 05.07.2010. He placed reliance on Clause-3.4 of the Notice Inviting Tenders (NIT) in support of his submission. I have carefully considered the submissions of the learned counsel for the parties with respect to pleadings and the record. As per the tender conditions notified through e-procurement, one of the qualifications for award of the contract, inter alia, is that each bidder in any financial year during the last five financial years must have satisfactorily completed the works under the same category costing not less than Rs.88,20,918/- as a prime contractor. Condition No.3.4 of NIT envisages that though the tenderers meet the above- mentioned qualifying criterion, they are liable to be disqualified/debarred/suspended/blacklisted, if they inter alia have the record of poor progress such as abandoning the work, not properly completing the contract, inordinate delays in completion, litigation history or financial failures etc. Vide his letter No.A2/APRDF/CR26/2010-11, dated 05.07.2010, the Executive Engineer (R & B), Guntur Division, has determined the contract relating to “Improvements to Madras – Calcutta road from KM 404.230 to 405.600 in Guntur District (APRDF Scheme)” under Clause-60(c) of PS to APDSS on the ground that the petitioner was able to execute the work worth Rs.16,82,252/-, as against the agreement value of Rs.97,62,886/-. It is not the pleaded case of the petitioner that this order of determination of the previous contract is questioned by it. Thus, the said order has attained finality as of now. In this admitted fact situation, I am of the opinion that Condition No.3.4 of NIT is squarely attracted as the contract entrusted to the petitioner was determined on account of its non-completion. As regards the submission of the learned counsel for the petitioner that the rejection of the petitioner’s tender was not preceded by a notice, it is not in dispute that the rejection was made at the process of evaluation of the tender. In my opinion, unless and until the petitioner’s offer is accepted through written communication, no indefeasible right comes to be vested in him to be entitled for a notice. Therefore, as the petitioner’s tender was rejected at the threshold even before it was finalised, it is not entitled to any prior notice and opportunity of being heard. On a careful consideration of the facts, I am of the opinion that rejection of the petitioner’s tender, cancellation of the previous tender process and issuance of fresh tender notification do not suffer from any arbitrariness or illegality warranting interference of this Court under Article 226 of the Constitution of India. For the above-mentioned reasons, the writ petition fails and is accordingly dismissed. As a sequel to dismissal of the writ petition, interim order, dated 22.02.2011, extended from time to time, shall stand vacated and W.P.M.P.No.5121 of 2011 and W.V.M.P.No.2716 of 2011 are disposed of as infructuous. C.V.NAGARJUNA REDDY, J 11th August, 2011 VGB