THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. No. 843 of 2009 O r d e r: Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner, which is a proprietary firm, represented by its General Manager, has filed this writ petition, praying for the following relief: To issue a Writ of Mandamus or any other appropriate writ declaring that the action of the 1st respondent-corporation in not considering the lowest rate quoted by the petitioner relating to the contract of supply of Cloth Bags of 3-4 Kgs. Capacity pursuant to the e-procurement Tender Notice No. SSDC/Q.C/Pur/2008-09 dt. 25.11.2008 and proceeding to negotiate with the 3rd respondent who is 2nd lowest tenderer for the said notification, as arbitrary and violative of Article 14 of the Constitution of India and consequently direct the 1st respondent-corporation to consider and award the said contract to the petitioner for the lowest tender rate of Rs.9.25 ps. per bag or the negotiated rate of Rs.9.00 per bag and grant such other relief as it deems fit and proper in the circumstances of the case. Pursuant to the tender notification dated 25.11.2008, issued by the 1st respondent-corporation, for supply of 3-4 Kgs. cloth bags, the petitioner states that they, the 3rd respondent and others submitted their tenders. The tender consists of two bids – technical bid and financial bid. The technical bids were opened on 11.12.2008, while the financial bids were opened on 19.01.2009. The petitioner states that on 19.01.2009, the Purchase Sub Committee informed him that theirs is the lowest tender at Rs.9.25/bag, while that of the 3rd respondent, is the 2nd lowest tender at Rs.9.50/per bag. Thereafter, the Purchase Sub Committee called the petitioner for negotiations, wherein he had agreed to reduce the rate to Rs.9.00/bag. Thereafter, the Purchase Sub Committee, called the 3rd respondent for negotiations, wherein the 3rd respondent reduced the rate from Rs.9.50/bag to Rs.8.00/bag. The petitioner contends that the 3rd respondent, who agreed to supply at Rs.9.50/bag could reduce it to Rs.8.00/bag, because the Purchase Sub Committee might have disclosed the rate at which the petitioner agreed to supply. Thus he contends that the Purchase Sub Committee colluded with the 3rd respondent to favour him the contract. He submitted that the tenderers were informed that the quantity that would be required to be supplied was 3.50 lakh bags, while the 3rd respondent was informed that they require 9.00 lakh bags. Because of the increase in the supply of quantity of bags, the 3rd respondent agreed to supply at Rs. 8.00/bag. Since the 1st respondent raised the supply of quantity of bags from 3.50 lakh to 9.00 lakh, the petitioner states that even he is agreeable to supply the bags at the rate at which the 3rd respondent agreed to supply. Apprehending that the 1st respondent-corporation may finalize the contract in favour of the 3rd respondent, the petitioner filed the present writ petition. The learned counsel for the petitioner submitted that given the fact that the 1st respondent required 3.50 lakh bags, he quoted Rs.9.25/bag, and during the course of negotiations held by the Purchase Sub Committee, he agreed to reduce the rate to Rs.9.00/bag. He submitted that in conducting negotiations, the 1st respondent has violated the procedure, in that, the Purchase Sub Committee, has not called all the tenderers for negotiations jointly, but conducted negotiations with the tenderers independently, one after the other. In so conducting, the Purchase Sub Committee, has first called the petitioner who is the lowest tenderer, for negotiations, and thereafter, it called the 3rd respondent, who is the lowest tenderer for negotiations. As the Purchase Sub Committee conducted negotiations with the 3rd respondent, after negotiations with the petitioner were over, there is every possibility of the Purchase Sub Committee, disclosing the reduced rate at which, the petitioner agreed to supply, thereby facilitating the 3rd respondent to reduce the rate to Rs.8.00/bag, which is much lower than the rate of Rs.900/bag, at which rate the petitioner agreed to supply. He further submitted that the reason for the 3rd respondent agreeing to supply the bags at Rs.8.00/- is because of increase in the quantity of supply of bags from 3.50 lakh to 9.00 lakh. Since the quantity of supply of bags has been increased, the learned counsel for the petitioner submits that even the petitioner is ready and willing to supply the bag at Rs.8.00/bag, and therefore, the petitioner also be given opportunity to supply the bags. Hence, he prays that the 1st respondent be directed to consider the offer and award the contract to him. On behalf of the 1st and 2nd respondents, their Manager (Personnel and Administration) filed detailed counter. The learned counsel for the 1st and 2nd respondents-corporation reiterating the counter averments submitted that even though the previous conduct of the petitioner was not good, which lead to imposing of penalty, yet they have not disqualified them, and considered his tender as also the tender of the 3rd respondent on merits. Even though the tender of the petitioner was the lowest at Rs.9.25/bag and that of the 3rd respondent, the second lowest at Rs.9.50/bag, but during the course of negotiations, wherein they were informed that the quantity of supply of bags has been raised to 9.00 lakh, the petitioner agreed to reduce the rate from Rs.9.25/bag to Rs.9.00/bag, while the 3rd respondent agreed to reduce the rate from Rs.9.50/bag to Rs.8.00/bag. He denied the contention of the petitioner that the Purchase Sub Committee has violated the tender procedure. He submitted that since the tender of the 3rd respondent after negotiations became the lowest, they have decided to award the contract to the 3rd respondent, and by doing so, the corporation would be saving Re.1.00/bag. He submitted that there is urgency in the matter, and the bags are required to be supplied in time, to enable them to supply to the farming community under different schemes of the government, and as such, prayed that the interim order be vacated and the writ petition be dismissed. The 3rd respondent also filed counter. The learned counsel for the 3rd respondent submitted that writ petition itself is not maintainable. He submitted that the negotiations were conducted by the Purchase Sub Committee as per the procedure prescribed. Even though the petitioner quoted the lowest rate of Rs.9.25/bag, but during the course of negotiations, he reduced the rate to Rs.9.00/bag, while the 3rd respondent even though quoted Rs.9.50/bag, during the course of negotiations, reduced the rate to Rs.8.00/bag. He submitted that the increase in the quantity of supply, was informed both the petitioner as well as the 3rd respondent. He denied that the Purchase Sub Committee, favoured him, much less disclosed the rate quoted by the petitioner, thereby facilitating him to reduce the rate to Rs.8.00/bag. He submitted that the petitioner sensing that the contract would be finalized in favour of the 3rd respondent, has filed this writ petition, and prayed that the same be dismissed. Heard the learned counsel for the petitioner, the learned Standing Counsel for respondent Nos. 1 and 2 and the learned counsel for respondent No.3, and perused the copies of the record, relating to the tender process, produced by the respondents- corporation. Admittedly, the tender consists of two bids – technical and financial. The technical bid of the petitioner as well as the 3rd respondent were evaluated by the Purchase Sub Committee, consisting of about 14 members, including the Chairman, constituted by the 1st and 2nd respondents-corporation, on 11.12.2009 and they stood qualified. Thereupon, the tenders of the petitioner and the 3rd respondent were subjected to evaluation of financial bids. The 1st respondent vide his letter dated 16.01.2009, informed all the bidders that the financial bids of the tenders will be opened on 19.01.2009 at 11.00 a.m., and negotiations will be made with the qualified bidders by the Purchase Sub Committee on the same day. The Purchase Sub Committee, evaluated the financial bids of the petitioner as well as the 3rd respondent on 19.01.2009. The minutes of the meeting of the Purchase Sub Committee, placed before the Court, would disclose that the petitioner quoted Rs.9.25/bag, while the 3rd respondent quoted Rs.9.50/per bag. Thereafter, the Purchase Sub Committee conducted negotiations with the petitioner and the 3rd respondent. During the course of negotiations, the minutes of the meeting disclose that the requirement of number of bags going up to 9.00 lakh from 3.50 lakh, was informed to the petitioner as well as the 3rd respondent. The minutes further disclose that the Purchase Sub Committee held several rounds of negotiations, wherein the petitioner agreed to reduce the price to Rs.9.00/bag while the 3rd respondent agreed to reduce the price to Rs.8.00/bag. Considering the fact that the final price quoted by the 3rd respondent during the course of negotiations at Rs.8.00/bag to be the lowest, the Purchase Sub Committee, recommended to place purchase order on the 3rd respondent at Rs.8.00/bag, which is inclusive of all taxes and FOR as per the terms of tender. The petitioner even though contends that he was not informed about the increase in the number of bags, the same is disputed by the 1st and 2nd respondents-corporation as also the 3rd respondent, and it is contended by them that the increase in the quantity of supply of bags, was informed both to the petitioner as well as the 3rd respondent well in advance before the negotiations took place, and the petitioner agreed to reduce the price to Rs.9.00/bag only, and to that effect, he has also given a letter, a copy of which is also produced, while the 3rd respondent agreed to reduce the price to Rs.8.00/bag, and has also given a letter to that effect, a copy of which is also produced. The factum of the petitioner and the 3rd respondent having been informed about the increase in the quantity of supply of bags, is also evident from the notings made by the Purchase Sub Committee, which is to the following effect: The Committee informed the tenderers during the negotiations that the requirement of number of bags have gone up to 9.00 lakh bags as against the tendered quantity of 3.50 lakh bags. Having regard to the above notings made by the Purchase Sub Committee and the letter given by the petitioner after negotiations that he would reduce the price to Rs.9.00/bag, the petitioner now cannot be allowed to contend that had he been informed about the increase in the quantity, he would have quoted Rs.8.00/bag, and since he is agreeable to supply at Rs.8.00/bag, he should be awarded the contract. The contention raised by the petitioner that since the Purchase Sub Committee, held negotiations first with the petitioner and later with the 3rd respondent, there is every possibility of the Purchase Sub Committee, informing the 3rd respondent about the price quoted by the petitioner, cannot be accepted, because the petitioner has not raised any objection as to the manner in which the Purchase Sub Committee conducted negotiations independently one after the other, first with the petitioner and second with the 3rd respondent. The petitioner has raised such a contention for the first time before this Court, and it appears conveniently, to make out a case, to maintain the writ petition, which cannot be accepted, because the petitioner and the 3rd respondent, were informed well in advance about the conducting of negotiations after opening of the financial bids. Even though the petitioner contends that is ready and willing to supply the bags at Rs.8.00/bag, the price at which the 3rd respondent agreed to supply, and in whose favour, the Purchase Sub Committee, recommended placing of purchase order, I am of the considered opinion that at this juncture, it would be improper for this Court to direct the 1st and 2nd respondents-corporation to consider the case of the petitioner and place the purchase order on him, for the petitioner despite being given an opportunity to reduce the price in the several rounds of negotiations held with him by the Purchase Sub Committee, had reduced the price only to Rs.9.00/bag. If the requests of the nature are directed to be considered for awarding the contract, then similar such requests would come from other bidders, and there would be no finality to the tender process, and in which event, the timely supply of seeds to the farmers, would be hampered, which certainly is not the aim of the 1st and 2nd respondents for calling tenders for supply of bags within a time frame considering the need and urgency. At any rate, the copies of the record, including minutes of the meeting of the Purchase Sub Committee, relating to the tender, the contents of which, as discussed above, would clearly go to show that there is no procedural violation or irregularity in the opening of the bids, much less holding negotiations with the tenderers to get supply of bags at a competitive and beneficial price to the 1st and 2nd respondents-corporation. There is no merit in the writ petition, and the same is accordingly dismissed. No costs. _________________ N.V. RAMANA, J. Date: 17th March, 2009 KSR