THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.11677 of 2009 Date : 24-8-2009 Between : K.Ajay Kumar Ghosh .. Petitioner And Government of A.P. Rep. by Principal Secretary, Panchayat Raj, Hyderabad And others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.11677 of 2009 ORDER: 1. Heard Sri A.Sudhakar Rao, the learned Counsel representing the writ petitioner and the learned Assistant Government Pleader for Panchayat Raj. 2. This Court issued rule nisi on 23-6-2009. The 3rd respondent filed counter affidavit. 3. The Counsel for petitioner had taken this Court to through the contents of the affidavit filed in support of the Writ Petition and would maintain that in the facts and circumstances of the case, the reliefs prayed for in the Writ Petition to be granted. 4. On the contrary, the learned Assistant Government Pleader for Panchayat Raj had taken this Court through the contents of the counter affidavit and would maintain that inasmuch as the technical bidders who had satisfied the bid criterion alone had been opened the petitioner cannot make out any grievance at all. 5. The Writ Petition is filed for a writ of mandamus declaring the action of the respondents in not opening the bid of the petitioner relating to Tender No.978-2008-2009 providing for B.T. road to the R/f Malakondarayanipalem to K.V. Road Bangarakkapalem under PMGSY Phase-II as illegal, perverse, nonest in law, arbitrary and untenable and consequently direct the respondents to open bid of the petitioner relating to Tender No.978/2008-2009 and to pass such other suitable orders. 6. It is the case of the writ petitioner that the writ petitioner is a Class II Contractor and completed several works without any comment from any quarter whatsoever. It is also stated that the Government of Andhra Pradesh, Panchayat Raj, represented by 2nd respondent issued Tender notification bearing No.978/2008-2009, dated 26-2- 2009 for providing B.T. road to the R/f Malakondarayunipalem to K.V. Road Bangarakkapalem under PMGSY Phase-II at an estimated cost of Rs.1.70,39,176/- and Tender No.978/2008-2009, dated 26-2-2009 for providing B.T. Road to the R/f work Polinenicheruvu Road to Gandhinagar at an estimated cost of Rs.1.86,27,250/- in Prakasam District. In response to the aforesaid Tenders, the petitioner submitted tender bids fulfilling all the conditions and obligations prescribed under the aforesaid tender notifications. It is also stated that the petitioner became the successful bidder for the tender No.978/2008-2009, dated 26-2-2009 for providing B.T. Road to the R/f work Polinenicheruvu Road to Gandhinagar. It is also stated that the bid of the petitioner bearing No.978/2008-2009, dated 26-2-2009 is not opened on the premise that the petitioner did not submit experience certificate for the year 2007-2008 relating to one work i.e., providing C.C. pavement in the village limits of Pallamalli from K.M. 25.250 K.M. to 25.600 of Throvagunta-Pallamalli road. Further it is stated that the tenders had been submitted through Internet and due to some technical snag, the experience certificate was not properly down loaded though the petitioner had submitted the same in the tender application form. The petitioner’s bid to tender bearing No.998/2008-2009 was accepted by the respondents by considering the same experience certificate for the year 2007-2008. It is also further stated that due to technical mistake the experience certificate was not properly down loaded relating to tender No.978/2008-2009 and the same experience certificate was properly down loaded to the tender bearing No.998/2008-2009. The respondents accepted the petitioner’s tender bearing No.998/2008- 2009 and did not accept the tender bearing No.978/2008-2009. Further the petitioner furnished the details of physical quantities of work executed by him in the last five financial years under Statement No.III. In the said statement the petitioner clearly mentioned that the work i.e., C.C. pavement in village limits of Pallamalli road under Sl.No.3. The petitioner is entitled for opening the bid even the quantities under the aforesaid work are being excluded. It is further stated that the petitioner made a representation dated 8-6-2009 to the 2nd respondent to open the bid relating to tender No.978/2008-2009, dated 26-2-2009 on the ground that the experience certificate was already considered by the respondents in Tender No.998/2008- 2009 and presented another copy of the experience certificate along with the request letter. It is also further stated that after opening the bids, the 4th respondent became the successful bidder as he quote d6.66% less. The petitioner quoted in his bids 6.71% less and hence if the bid of the petitioner is opened, the petitioner will be successful bidder in the said tender. If the bid of the petitioner is opened, the petitioner will be successful and it is also beneficial to the Government as the petitioner quoted less than the 4th respondent. Certain further facts also had been narrated in the affidavit filed in support of the Writ Petition. Along with the Writ Petition, a copy of the tender notice, copy of the bid of the petitioner, copy of eligibility criterion, copy of commercial evaluation, copy of Statement No.III, copy experience certificate, copy of bid submitted by the petitioner relating to tender No.998/2008-2009, commercial details of the bid relating to tender No.998/2008-2009 and representation of the petitioner dated 18-6- 2009 also had been placed. 7. In the counter affidavit filed by the 3rd respondent, it is stated that the work of providing B.T. to the road from Malakondarayunipalem to K.V. Road Bangarakkapalem estimated at Rs.181.62 lakhs vide NIT No.978/2008-2009 dated 26-2-2009 and for the work of providing B.T. surface to the road from Polineni Cheruvu to Gandhinagar estimated at Rs.196.36 lakhs vide NIT No.998/2008- 2009 dated 26-2-2009 were administratively sanctioned under Pradhan mantri Gram Sadak Yojana Phase VIII grant in Prakasam District vide G.O.Ms.No.68 dated 27-2-2009 of Panchayat Raj and Rural Development Department. The Engineer-in-Chief, Panchayat Raj, Hyderabad had invited tenders for the above said works through ‘e’ procurement platform. The eligibility criteria for the above said two works is as follows: For Providing B.T. to the road from Malakondarayunipalem to K.V. Road Bangarakkapalem Est: Rs.181.62 lakhs – NIT No.978/2008- 2009 dated 26-2-2009: (a) Contractor’s Registration : Class II & above (b) DD/BG towards EMD: Rs.3,41,000/- (c) VAT registration certificate along with TIN Number obtained from Commercial Tax department and latest clearance certificate from the concerned Commercial Tax Officer. (d) PAN card along with latest Saral Form in support of the submission of I.T. returns acknowledged by I.T. Department. (e) Solvency/Credit facilities from any scheduled or nationalized bank for Rs.42.60 lakhs. (f) Similar nature of work executed in any year of last five financial years : Rs.82.20 lakhs. (g) Annual turn over certificate certified by CA OR Experience certificates issued by Executive Engineers duly countersigned by Superintending Engineers concerned (‘A’ Value) (h) Certificate in support of existing commitments (‘B’ Value) (i) The experience certificates showing that the applicant should have executed minimum of physical quantities in any year of last five financial years as given below: Earth work 5056 Cum. WBM 1477 Cum. Gravel 2320 Cum. BT 9312 Sqm. VCC/VRCC 332 Cum. (j) The bid capacity is 3*A*N-B should be greater than the estimated contract value i.e., Rs.1,70,39,176/-. It is stated that in response to NIT No.978/2008-2009, dated 26-2- 2009 i.e., providing B.T. surface to the road from Malakondarayunipalem to K.V. road to bangarakkapalem Est.Rs.181.62 lakhs tenders were received from the following bidders: 1. M/s. Bhavani constructions 2. Sri G.Sudhakara Rao 3. Sri K.A.K. Ghosh 4. Sri Ch. Balaji It is also stated that in the evaluation of technical bid, all the bidders were found to be qualified except the petitioner and the tender of the petitioner was found to be disqualified due to insufficient experience in executing C.C. quantity. As per the NIT conditions, the contractor should upload his experience certificates showing the execution of 332 Cum. as minimum required quantity which is mandatory whereas from the experience certificates uploaded by the petitioner, the quantity of C.C. executed by him is only 286.83 Cum. in the financial year 2006-07. Further it is stated that as per para No.3(iii) of the NIT conditions, it is very clearly given that the Department shall carry out the technical evaluation solely based on the uploaded certificates/documents. Therefore, in the evaluation of the technical bid, the petitioner was disqualified. Further it is stated that in respect of the work for providing B.T. to the road from Polinenicheruvu road to Gandhi Nagar, Est.Rs.196.36 lakhs – NIT No.998/2008-2009 dated 26-2-2009, the eligibility criteria is as follows : (a) Contractor’s Registration : Class II & above (b) DD/BG towards EMD: Rs.3,73,000/- (c) VAT registration certificate along with TIN Number obtained from Commercial Tax department and latest clearance certificate from the concerned Commercial Tax Officer. (d) PAN card along with latest Saral Form in support of the submission of I.T. returns acknowledged by I.T. Department. (e) Solvency/Credit facilities from any scheduled or nationalized bank for Rs.46.60 lakhs. (f) Similar nature of work executed in any year of last five financial years : Rs.93.14 lakhs. (g) Annual turn over certificate certified by CA OR Experience certificates issued by Executive Engineers duly countersigned by Superintending Engineers concerned (‘A’ Value) (h) Certificate in support of existing commitments (‘B’ Value) (i) The experience certificates showing that the applicant should have executed minimum of physical quantities in any year of last five financial years as given below: Earth work 5953 Cum. WBM 1919 Cum. Gravel 2385 Cum. BT 12788 Sqm. VCC/VRCC 121 Cum. (j) The bid capacity is 3*A*N-B should be greater than the estimated contract value i.e., Rs.1,86,27,250/-. It is also further stated that in respnse to NIT No.998/2008-2009 dated 26-2-2009 i.e., for providing B.T. to the road from Polinenicheruvu to Gandhinagar Est. Rs.196.36 lakhs tenders were received from the following bidders : (a) M/s. Bhavani constructions (b) Sri A.K. Ghosh (c) M/s.CSR Constructions (d) M/s. Vensor constructions (e) Sri G.Sudhakara Rao On the evaluation of technical bid, all the bidders were found to be qualified except M/s. Vensor constructions and the tender of M/s. Vensor constructions was found to be disqualified due to non- uploading of SARAL form which is mandatory as per NIT conditions. In the said tender, the petitioner was qualified as he fulfilled all the required conditions and his tender was recommended for approval since his tender was the lowest among others. It is also further stated that after evaluation of technical bids, the price bids of all the qualified bidders had been opened and the tender percentages quoted were as follows: (a) Sri K.A.K. Ghosh - 6.26% less (b) Sri G.Sudhakara Rao - 6.00% less (c) M/s. CSR Construction - 5.90% less (d) M/s.Bhavani constructions – 4.69% less It is stated that the lowest bid of the petitioner was recommended and submitted to Chief Engineer, PR PMGSY for approval and the same was approved by the Chief Engineer, PR. PMGSY Vide Memo No.W27/DEEIII/AP VIII.1622/GNT/2008-09 dated 26-5-2009 and LOA (letter of Acceptance) was issued to the petitioner for concluding Agreement. For the NIT No.978/2008-2009, the tender percentages quoted by the qualified bidders were as follows: (a) Sri G.Sudhakara Rao - 6.66% less (b) Sri Ch. Balaji - 4.50% less (c) M/s.Bhavani Constructions - 1.27% less The lowest bid of Sri G.Sudhakara Rao was recommended and submitted to the Chief Engineer, PR, PMGSY for approval. It is also further stated that the contention of the petitioner that the petitioner’s bid in the tender No.978/2008-2009 is not opened due to non- submission of experience certificate for the work of providing C.C. pavement in the village limits of Pallamilli from K.M. 25.250 to 25.600 of Throvagunta-Pallamilli road is false and baseless. In fact, the petitioner did not upload the required experience certificates in support of C.C. quantity which is mandatory. As per the NIT conditions, the petitioner should upload experience certificates showing the execution of C.C. quantity for 332 Cum. as minimum required quantity where as the petitioner the quantity of C.C. executed by him is only 286.83 Cum. in the Financial year 2006-07 and hence his tender was disqualified as per the NIT conditions which can be viewed by one and all in the web site. It is also further stated that the contention of the petitioner that the petitioner has uploaded the experience certificate of Pallamalli work in the tender of NIT No.998/2008-2009 is false. The petitioner simply mentioned his work in Statement No.III without uploading the supporting certificates which is mandatory. It is also stated that the contractors should follow the procedure for bid submission given in the NIT conditions and see that all the necessary documents are uploaded properly for every work participated by them. However, in the tender NIT No.998/2008-09, the petitioner uploaded the experience certificates for a C.C. quantity of 590.51 Cum. in the year 2006-07 and the same was considered in the evaluation. As per NIT conditions, the required C.C. quantity is 121 Cum. and hence the bid of the petitioner was qualified. It is also further stated that as explained earlier it is solely the responsibility of the tenderer to upload the required documents as per NIT conditions which is mandatory. It is also stated that all the documents uploaded by the tenderers had been downloaded by the Department for evaluation. The tenderer Sri K.A.K. Ghosh did not upload the required experience certificates in case of NIT No.978/2008-2009. In the statement III uploaded by the tenderer to show the physical quantities executed by the tenderer in the last five financial years must be issued by the Executive Engineer concerned and countersigned by the Superintending Engineer duly showing the quantities executed year wise. In the present case, the petitioner uploaded the Statement III which is not issued by the Executive Engineer concerned and countersigned by the Superintending Engineer and hence his tender was disqualified. It is also further stated that it is true that the petitioner had furnished the details of physical quantity of C.C. pavement work of palamilli Road in Statement No.3 but as per NIT conditions, he should upload the supporting certificates issued by the Executive Engineer concerned duly countersigned by the Superintending Engineer concerned and the same were not uploaded by the petitioner. The mere furnishing of information in the statement does not entitle the petitioner for consideration of his tender. As per para No.3(iii) of the NIT conditions, the technical evaluation is done solely based on the uploaded certificates/documents. The Department will not be responsible for any type of technical mistakes that might have occurred while uploading the documents by the bidders. The Contractor should follow the procedure for bid submission given in the NIT conditions and see that all the necessary documents are uploaded properly for every work participated by the tenderers. Further, it is stated that as per the tender procedure only the technical bids of the bidders who had satisfied all the eligibility criteria were opened and out of the qualified bidders, the lowest bid was recommended for approval and the tender percentages of unsuccessful bidders will not be displayed on the ‘e’ platform and hence the tender percentage quoted by the petitioner is not known. 8. Along with the counter affidavit, the relevant material papers also had been placed before this Court. 9. In the light of the respective stands taken by the parties, it is clear that for the reasons which had been well explained in the counter affidavit and in a way even if the stand taken by the writ petitioner to be taken into consideration, the non-opening of the bid of the petitioner cannot be either unjust or illegal in the given facts and circumstances. Hence, in the light of the same, the Writ Petition being devoid of merit, the same shall stand dismissed. Parties to bear their own costs. _____________________ Justice P.S.Narayana Date : -8-2009 AM