IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY WRIT PETITION NO : 12040 of 2004 Between: J. Anand Reddy S/o.Kista Reddy R/o.322/2, Sriivasa Colony, Mahabubnagar. ..... PETITIONER AND 1 The Superintending Engineer, Panchayat Raj Circle, Kidwaipet, Manabubnagar. 2 Sri P.Ramesh S/o. of Narayana Ra, R/o. Plot No.28, Banjara Green Avenue, Banzara Hills Road No.72, Banjara Hilsl, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction, more particularly a writ in the nature of Mandamus, declaring the action of the 1st respondent in rejecting my technical bid on the ground that the Solvency Certificate is not in consonance with the format as stipulated and accepting the Solvency Certificate of the 2nd respondent which is in similar to that of the petitioner and recommending his name for allotment of tender even after my financial bid is less by 12.6% than the 2nd respondent herein as illegal, arbitrary, voilative of Articles 14,16, 21 and 300-A of the Constitution of India besides being violative of Principles of promissory estoppel. Counsel for the Petitioner: MR.M.A.ASHFAQ MOHIUDDIN Counsel for Respondent No.1: GP FOR PANCHAYAT RAJ & RURAL DEV. Counsel for Respondent No.2: Mr. T. Durga Reddy The Court at the admission stage made the following : ORDER: Heard learned counsel for the petitioner and learned Government Pleader for Panchayat Raj and Rural Development for respondent No.1. Both have no objection for disposal of the writ petition at the admission stage. In response to the ‘e’ procurement Notice No.6/2003-2004 dated 21-2-2004 calling for tenders for various works including the one under package No.AP-1208-Ph-III comprising three works, namely, laying of BT road from NH7 to Thimmayapally, NH7 to Kanamanoor and R/F Kodukuntla to Mentapalli, under PMGSY-Ph-III, the petitioner and two others submitted their tenders. The last date for receipt of tenders was fixed as 8-3-2004, and the dates for opening of technical bids was 15-3-2004 and the financial bids was 18-3-2004. The same were cancelled and were recalled twice and cancelled. Ultimately, the first respondent called for tenders for all the packages including the package AP 1208 comprising three works on 4-6-2004 fixing the date for opening of the technical bid as 11-6-2004 and financial bid as 15-6-2004 in which, four tenderers including the petitioner have participated. On opening of the technical bid the tenders of both petitioner and Sri M. Pandurangam were disqualified for non-furnishing of solvency certificate in the prescribed format as per G.O.Ms.No.94 dated 1-7-2003, whereas another tenderer, namely, Sri V. Devender Reddy had withdrawn from contest due to personal problems. The technical bid evaluations are approved by the Superintending Engineer (PR), Mahaboobnagar and price bid of the second respondent was opened in which he has quoted 0.10%, less than the estimated rates. Petitioner filed this writ petition questioning the rejection of his technical bid on the ground that the solvency certificate is not in consonance with the format prescribed in G.O.Ms.No.94, dated 1-7-2003 and accepting the solvency certificate of the second respondent and recommending his name for allotment of tender as illegal, arbitrary and in violation of the conditions contained in tender notice dated 4- 6-2004 and against the norms prescribed in PMGSY and hence the second respondent has to be blacklisted for non-disclosing of on going four works. Opposing the affidavit averments, first respondent filed counter affidavit stating that in view of the guidelines issued in G.O.Ms.No.195 dated 10-5-1999, after evaluation of the technical bid and opening of the financial bid of the qualified tenderer, the tender documents were submitted to the Chief Engineer, Panchayat Raj, Hyderabad for taking further action as the estimated cost of the package is more than 50.00 lakhs. The bid of the second respondent was considered as he has submitted the latest solvency certificate in the prescribed format as per G.O.Ms.No.94, dated 1-7-2003 issued by the ING Vysya Bank, Banjara Hills, Hyderabad dated 8-6-2004 but also uploaded another solvency certificate issued by the same bank dated 24-1-2004 and the latest certificate was considered in the evaluation. Based on the complaint received from the petitioner with regard to the four works, said to have been not disclosed by the second respondent, a clarification was sought from the concerned Executive Engineers. The Executive Engineer (PR), Mahabubnagar has clarified that the first work was already completed. The second work was not pertaining to second respondent, which was executed by another contractor and the third work was not pending against the second respondent and the fourth work was already mentioned by the second respondent in the list of works in which bids were submitted. In view of the same, the tender evaluation was carried out as per the tender conditions only. As the solvency certificate furnished by the petitioner was not in accordance with the form prescribed in G.O.Ms.No.94, he was disqualified and the same was submitted to the Chief Engineer. The second respondent also filed counter affidavit denying the allegations made by the petitioner about the suppression of four works namely – a. Yelkicherla to Battupally – Work PMGSY Phase-II b. Kothamolgara to Jadcherla – Panchayat Raj Department c. Narayanapet to Aminpoor – Roads & Building Work d. Ganpoor to Wanaparthy – Roads & Buildings Work. He also contends that the first work has already been completed; the second work was allotted to another person namely Sri P.P. Rao contractor; the third work was mentioned in the list of works for which bids were submitted; and the fourth work was completed long before submission of the tenders and it is not for the petitioner to claim that second respondent should be blacklisted. The petitioner had issued a legal notice stating that the second respondent has not disclosed the following works: i. Improvement to road from Narayanpet to Ameenpur from KM 0/0 to 8/0 in Mahabubnagar District, vide Agreement No.10/2004-2005 dated 31- 5-2004 with an estimated cost of the work of Rs.98 lakhs. ii. Improvement to the road from IEEJA to Vittalapur road via Thumkunta from KM 0/0 to 9/0 in Mahabubnagar district vide Agreement No.11/2004- 2005, dated 31-5-2004. It is further submitted that the work mentioned at item no.(i) is the same as item (c) referred to above. Both the works are shown in the list of works for which bids were submitted and he has not suppressed any on going works except for mentioning above two works in the list of works for which bids were submitted. Since tenders were called for earlier and the same were cancelled and while submitting the bids for the present tender notice the second respondent has inadvertently mentioned above two works in the list of works for which bids were submitted instead of mentioning the same as on going works as was done earlier. It is only a bona fide mistake but not a deliberate suppression of material fact for which the second respondent cannot be blacklisted. Various submissions were made by the learned counsel for the petitioner that the disqualification of the petitioner by the first respondent is arbitrary and illegal and production of solvency certificate from the Bank is only to know the financial capacity of the contractor and it is only a procedure and the tender cannot be rejected on the ground that the same is not in the prescribed format. Once the petitioner is solvent it is only to know that the solvency certificate of the petitioner is true, but not otherwise. On the other hand learned Government Pleader submits that the writ petition is premature since it is for the Tender Committee to evolve the procedure as the works are costing more than 1.20 lakhs. The first respondent has only forwarded the tender after opening of the financial bid of the second respondent, who alone is qualified. On report submitted by the Chief Engineer, it is for the Tender Committee to evaluate both the tenders. Sri T. Durga Reddy, learned counsel appearing for the second respondent contends that once the matter is before the Tender Committee, it is not for the petitioner to contend that the second respondent should be disqualified and has to be blacklisted. It is for the Tender Committee to evaluate the tenders but not for the petitioner to say that the second respondent should be disqualified. It is not in dispute that as per G.O.Ms.No.195, dated 10-5-1999 the State Government had streamlined the tender procedure to achieve the greater transparency in procurement. As per guidelines issued, wherever the contract work is more than 100.00 lakhs, A Tender Committee should be constituted to finalise the tenders. As per G.O.Ms.No.268, dated 3-9-2003 the Superintending Engineer will evaluate and process the tenders and submit to the concerned Chief Engineer/ENC (Panchayat Raj) as is done in the case of the Conventional tenders. The Chief Engineer/ENC (Panchyat Raj) after his evaluation will finalize tenders up to Rs.100.00 lakhs and submit to the Tender Committee in case the value of tender is more than Rs.100.00 lakhs. The Tender Committee will examine the bids and decide the successful bidder and communicate its decision to the Chief Engineer/ENC (Panchayat Raj). The Chief Engineer/ENC (Panchayat Raj) in turn communicate the Tender Committee as well as the Superintending Engineer as is done in the case of the conventional tenders. All this process will be online. In view of the same, the Superintending Engineer only evaluated the tenders submitted by the petitioner as well as the second respondent and on opening of the technical bid the second respondent has been qualified since the solvency certificate furnished by him was in the prescribed format. Accordingly, the financial bid was opened and the same was forwarded to the Chief Engineer. The Chief Engineer in turn has to submit his report to the Tender Committee and only the Tender Committee will finalise the tender. While finalizing the tenders, whether the disqualification of the petitioner on account of the non-submission of solvency certificate in prescribed format is justified or not will be decided by the Tender Committee. In the event, if it feels that the financial bid of the petitioner should also be opened, the Tender Committee should issue necessary instructions for opening of the financial bid and submit a report and only after following due procedure, the Tender Committee shall evaluate the tenders. Unless, the tenders submitted by the petitioner have been evaluated by the Tender Committee, it is not necessary to go into the various contentions raised in the writ petition, since the writ petition itself is premature. In view of the same, it is for the Tender Committee to consider the same and pass appropriate orders. If the parties are aggrieved by awarding of the contract on the evaluation by the Tender Committee, they are at liberty to avail the remedies available to them under the law. Accordingly the Writ Petition is dismissed at the admission stage. _____________________ A. Gopal Reddy, J. 7th October, 2004. Js. ASSISTANT REGISTRAR To 1 The Superintending Engineer, Panchayat Raj Circle, Kidwaipet, Manabubnagar. 2 2 CCs to G.P. for Panchayat Raj & Rural Development, High Court Buildings, 3 2 CD copies.