IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 19380 of 2011 Date of decision: 17.10.2011 M/s S.B. Constructions Company …..Petitioner vs. State of Punjab and ors …..Respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE G.S.SANDHAWALIA Present: - Mr. Anupam Singla, Advocate for the petitioner HEMANT GUPTA, J Petitioner has challenged the conditions in the tender notice inviting tenders for the work of “diversion of flow of River Chakki by Constructing Bandh and digging cunnettee in the bed of River Chakki for safety of Village Abadies of Village Tambuan and adjoining National Highway-1A”. The conditions challenged by the petitioner reads as under: - “17. xxx i) to v) xxxxx vi) Copy of ownership of earth work machinery required for this work of the NIT (3 Nos. Chain mounted Hydraulic excavators with bucket capacity 0.90 cum, 5 Nos. Hyas/Trucks with invoice bogie capacity 14.0 cum, 2 Nos. Trucks with invoice bogie capacity 10.0 cum and 2 Nos JCB) vii) Contractors/Consortiums who have successfully completed at least one prime work of similar nature valuing not less than the amount of this work of this tender or two prime works of similar nature valuing not less than 80% of the amount of work of this tender or three prime works of similar nature valuing not less CWP No. 19380 of 2011 than 50% of the amount of work of this tender in a single year during the last three consecutive calendar years. A documentary proof issued by an officer not below the rank of Executive Engineer of the concerned department should be attached viii) Certificate from the Bank having working capital of minimum amount equivalent to 40% of the tender amount of work in the form of Bank account/F.D.R./ Bank guarantee etc. This amount as mentioned above should be available on the date of downloading bid form. (If necessary, it will be verified from the concerned Bank.) 9. Contractors/Agencies L&C Societies should have achieved a minimum average annual financial turnover (in all classes of civil engineering construction works only) equal to 1.50 times of estimated cost of this work during the last three financial years.” The grievance of the petitioner is that such conditions were not imposed in the earlier tender notice published on 27.4.2011 (Annexure P-2) which tender process has since been scrapped. It is also contended that such conditions are tailor made so as to make respondent No. 6 as an eligible contractor who was not the lowest tenderer in the earlier tender process. The conditions that the tenderer should be the owner of the machinery or of the minimum average annual turnovers are targeted to help respondent No. 6 and to exclude the other contractors such as the petitioner. We do not find any merit in the argument raised by the learned counsel for the petitioner. The conditions incorporated above are relevant to adjudge the capacity of a contractor to perform the work. It is for the State Government 2 CWP No. 19380 of 2011 to stipulate the conditions in respect of the eligibility and to determine the capacity of the contractor to execute the work. None of the conditions can be said to be satisfied only by respondent No. 6. The machinery and the availability of working capital are the conditions which reflect upon the capacity of the contractor to execute the work. The tender conditions cannot be said to be unfair, arbitrary only for the reason that the petitioner does not fulfill the same. None of the conditions can be said to be not related to be a fair decision making process. In any case, this Court cannot act as a Court of appeal and to hold that one or the other conditions is unjustified. In view of the said fact, it cannot be said that such tender conditions are illegal or arbitrary and that this Court can interfere with such conditions in exercise of the writ jurisdiction. Dismissed. (HEMANT GUPTA) JUDGE (G.S.SANDHAWALIA) JUDGE 17.10.2011 preeti 3