IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.32049 of 2011 BETWEEN D. Anand Rao. ... PETITIONER AND The Food Corporation of India, Hyderabad and another. ...RESPONDENTS Counsel for the Petitioner: MR. CHALLA GUNRANJAN Counsel for the Respondent: MR. B. ANJANEYULU for R1 The Court made the following: ORDER: Petitioner submits that his price bid is not being opened and considered along with the other competitors and as such, the action of the first respondent in excluding the petitioner from qualifying for the price bid is questioned in this writ petition. 2. The tender in question was invited on 20.10.2011 for appointment of loading/unloading/handling and transport contractor at food corporation depots/godowns/railheads etc. internal transport contractor at BSC, Zangalapally. Petitioner along with three other bidders participated in the said tender by submitted the technical bid as well as price bids. Petitioner alleges that his bids were neither rejected nor returned, but on the information received that his price bid is not being considered on the ground of not having been qualified, the present writ petition is filed. Petitioner also states that as per his information his bids are not being considered, as he failed to attach the ‘audited profit and loss account and balance sheet of the relevant completed years’ and on that ground, he has been said to be disqualified. Petitioner submits that the refusal to consider his price bid on such minor technical reasons, which are not mandatory, is wholly illegal. Petitioner also claims that he is the existing contractor and has been working the contract from 2009 onwards up to 15.10.2011 with the Food Corporation of India (FCI) itself and that his experience and capacity being within the knowledge of FCI, mere non enclosure of profit and loss account in his bid document ought to be treated as minor deficiency, which could be ignored, especially as petitioner has given sufficient reason, as at the time of submitted the tender his TDS certificates were not reflected in the website of the Income Tax Department resulting in finalizing the profit and loss account of the petitioner being held up. 3. The respondent – FCI has filed a counter affidavit denying that there is any illegality in excluding the petitioner’s bid from consideration. They have placed strong reliance on clause 8 (c) of the tender from, which require that each tenderer must include list of documents as per the format in Appendix – II. Reliance is also placed on clause 8 (d), which states that tenderers, who do not comply with these instructions, shall be summarily rejected. 4. The short question, therefore, which falls for consideration is whether the non-consideration of petitioner’s bid by the first respondent – FCI is legally justifiable. The procedure for submission of tender is governed by clause 8 of the Tender Form. The relevant portion thereof is as follows: 8. Submission of Tender (a) The tender shall be submitted in two parts, viz., technical and price bid. (b) … (c) The envelope containing the Technical Bid shall include the following: (i) … (ii) … (iii) List of Documents attached, as per the format in Appendix II, duly singed by the Tenderer. The list of documents required to be attached is provided under Appendix-II is as follows: List of Documents Attached 1. Forwarding Letter. 2. Part – A Technical Bid with all its Annexure & Appendix. 3. List of documents enclosed. Document No. 1. Attested copy of Registered Deed of Partnership/Memorandum and Articles of Association/By- laws/Certificate of Registration etc. as applicable. Yes/No 2. Power of Attorney of person signing the tender. Yes/No 3. Certificate of experience and details thereof. Yes/No 4. Duly audited P&L account and Balance Sheet of relevant completed years for which experience certificate has been submitted by the tenderer. Yes/No 5. Copy of Income Tax Return/PAN Card Yes/No 6. Copy of EPF Code Number and Proof of Deposit of EPF for relevant experience period, if applicable. Yes/No It would be, thus, evident that the tender form filled by each tenderer must contain the documents, as shown in the list above and then only the said tender will be complete tender document as per clause 8. 5. In the counter affidavit filed by the first respondent – FCI, a photocopy of the tender form submitted by the petitioner, particularly, to the extent of Appendix-II, referred to above, is appended to the counter affidavit. For items 1, 2, 4 and 6 petitioner has not ticked either Yes or No and on the contrary, items 3 and 5 are ticked as Yes and the said form is signed by the petitioner. 6. It is, therefore, evident that duly audited profit and loss account and balance sheet were not appended to the tender form submitted by the petitioner. The first respondent, therefore, has considered petitioner’s tender as not complying with the instructions and liable to be summarily rejected under clause 8(d) of the tender form. It is, therefore, stated in the counter affidavit that on opening of technical bid on 25.11.2011 the tender form of the petitioner was not found attached with duly audited P&L account and balance sheet and hence, disqualified as per clause 8(c)(iii) read with 8(d) of the tender form. It is also stated that in view of clause 8(h) the tenderer cannot be given further opportunity to alter, modify or withdraw any offer at any stage after submission of tender. 7. Learned counsel for the petitioner submits that the said tender condition of profit and loss account cannot be said to be mandatory condition and that subsequently the profit and loss account, which is available and was sought to be produced but it was not accepted. Learned counsel, therefore, submits that the petitioner being the existing contractor, whose performance is known to the first respondent, ought to have been allowed to compete for the price bid as the rates offered by him are lowest and highly competitive and in the interest of first respondent. 8. The said contentions, however, are stated to be rejected as no tenderer can supplement the deficiencies in his tender form, especially after opening the bids. Secondly, the Supreme Court in M/S. G.J. FERNANDEZ v. STATE OF KARNATAKA[1] has held as under: “…It is clear that at least some, if not all, of the documents referred to in para V, are intended to verify the fulfillment of the three pre-qualifying requirements of para I. The stipulation of the time element within which the information asked for in para V should be supplied is also of some significance; it specifically requires the information to be supplied along with the application for tender forms. As pointed out by this Court in its judgment dated 3.3.1989 in Ram Gajadher Nishad v. State of U.P., C.A. 1819/89, an intending tenderer can be perhaps letigimately excluded from consideration for a contract, if the certificates such as the ones under Clauses (b) and (c) of para V are not furnished. It may not, therefore, be correct to read para I in isolation and treat it as the only condition precedent for the supply of forms of tender. The more harmonious and practical way of construing the N.I.T. is by saying that, before the tender books can be supplied, an intending tenderer should satisfy the K.P.C, by supplying such of the documents called for in para V as are material in assessing the fulfillment of the condition in para I, that he fulfills the three conditions set out in para I. It seems clear to us that, apart from para I, there are some other requirements in the N.I.T. which have to be complied with before the applicant can be eligible for supply of tender forms. These include, if not all, at least such of those documents referred to in para V(d) as have a direct bearing on the three conditions outlined in para I.” “…It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, the 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders…” 9. In view of the above, therefore, the petitioner, who has, admittedly, not satisfied the mandatory requirement of producing the necessary documents, as required under the terms of the tender, cannot seek consideration of his tender by the first respondent and any consideration of petitioner’s tender would clearly violate Article 14 of the Constitution of India, as the first respondent is bound to scrupulously hold on to the terms of the tender. It cannot also be said that the requirement of satisfying the financial capacity by producing the duly audited profit and loss account is not an essential condition and as such, not mandatory. The writ petition, therefore, has no merits, and accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 23, 2011 DSK [1] AIR 1990 SC 958