THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.31014 OF 2010 DATED FEBRUARY, 2011 BETWEEN M/s.Sri Sai Constructions Company …Petitioner And The Superintending Engineer/Civil Designs, A.P.GENCO, Room No.144, A-Blcok, Vidyut Soudha, Somajiguda, Hyderabad and another. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.31014 OF 2010 O R D E R The petitioner firm is a registered Class-II Civil Contractor. The Power Generation Corporation of Andhra Pradesh Limited (APGENCO) issued an e-procurement tender notification on 06.09.2010 in respect of works relating to Nagarjunasagar Hydro Electric Scheme (HES) Flood Damage Repairs, Restoration of Left Bank River training works revetment, retaining wall and approach road to Nagarjunasagar HES, with an estimated contract value of Rs.98,66,438/-. The bidders had to submit their tenders through the e- procurement platform online. The pre-qualification/technical bids were scheduled to be opened on 05.10.2010 and the price bids of eligible bidders were to be opened on 12.10.2010. The petitioner firm submitted its tender online in response to the above notification. As its tender was rejected at the pre-qualification stage, the petitioner firm is before this Court. APGENCO filed its counter in the mater stating that the pre- qualification bids were opened on 05.10.2010 as per schedule and not on 03.12.2010 as stated by the petitioner. Only the opening of the price bids was postponed. According to the APGENCO, the petitioner did not fulfil the basic eligibility criterion as to the requisite satisfactory completion of works under ‘buildings’ category as a prime contractor during the specified period to the value of Rs.1,20,00,000/- (inclusive of cement and steel) or Rs.99,00,000/- (exclusive of cement and steel). Sri A.Santhosh Kumar, learned counsel for the petitioner firm, contended that the tender notification placed on the website did not indicate that the required works to aspire for eligibility should be in the ‘buildings’ category. He relied upon the eligibility criteria specified in the e-procurement notification, filed in the material papers in support of the writ petition, in this regard. The portion relevant is extracted hereunder: “To qualify for award of the contract, each bidder in its name should have in the last five years – satisfactory completed as a prime contractor works under category, in any one financial year ending with 31.03.2010, of value not less than Rs.1,20,00,000/-” Per contra, Sri C.Raghu, learned standing counsel for the APGENCO, relying on the hard copy of the e-procurement tender notification placed on the website, contended that it was specifically stated therein that the eligibility criterion was as per the tender documents and that the tender documents explicitly mentioned that the requirement was satisfactory completion of works under ‘buildings’ category to the tune of Rs.1,20,00,000/- or Rs.99,00,000/- as specified. He pointed out that the petitioner firm necessarily had to go through the tender documents for submitting its bid online and therefore could not claim ignorance of this aspect. Learned counsel submitted that the petitioner firm, being ineligible as per the tender specifications, was liable to be rejected at the pre-qualification stage and sought dismissal of the writ petition. The controversy as to whether the tender specifications placed on the website by the APGENCO indicated in clear terms that the required works were to be executed in the ‘buildings’ category, is incapable of resolution by this Court at this point of time. Both the learned counsel submitted that the e-procurement tender notification can no longer be accessed online. That being so, only the hard copies of the said notification produced by both sides are before this Court. It is no doubt true that in the page titled ‘eligibility criteria’, relied upon by the petitioner, there is no mention of ‘buildings’ category. However, it specifically states that the bidder must have satisfactorily completed works ‘under category’ of value not less than Rs.1,20,00,000/-. Therefore, the petitioner being made aware of the requirement of completing the requisite works in a particular category necessarily had to view the tender documents to ascertain the nature of that category. There is no dispute that the e-procurement page titled ‘home’ allowed perusal of tender documents under the caption ‘view tender documents’. It is not the case of the petitioner firm that the tender specifications were altered to its detriment after the submission of its bid. As matters stand, the petitioner firm admittedly did not fulfil the prescribed eligibility criteria of having completed the requisite value of works in ‘buildings’ category. Though Sri A.Santhosh Kumar, learned counsel, attempted to argue that the insistence on the ‘buildings’ category had no relevance to the works to be executed, it is not for this Court to evaluate what should be the eligibility criteria for undertaking a particular work. The APGENCO in its wisdom specified what it perceived to be the requisite eligibility criteria and this Court does not propose to sit in appeal over such a technical decision. The dispute as to whether the eligibility specification with regard to the required works being under ‘buildings’ category was informed to the bidders cannot be decided at this late stage. It is however relevant to note that the material filed by Sri C.Raghu, learned counsel, reflects that as many as 8 tenderers participated in the bid process and except the petitioner, no other contractor has come before this Court complaining of lack of transparency in the communication of the eligibility conditions online. As stated supra, the petitioner ought to have taken a clue from the eligibility specification which mentioned the phrase ‘satisfactorily completed as a prime contractor works under category’ and ascertained the nature of the category required. Having failed to meet the eligibility requirements as specified, the petitioner firm cannot insist upon its price bid being considered. The Writ Petition therefore fails and is accordingly dismissed. Parties shall bear their own costs. ____________________ SANJAY KUMAR, J. _______ FEBRUARY, 2011. PGS