THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.2310 OF 2011 Dated: 24.08.2011 Between: T. Bhaskara Rao … Petitioner And 1. Govt. of Andhra Pradesh, rep. by its Secretary, R & B Department, Secretariat Buildings, Hyderabad., and 3 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.2310 OF 2011 ORDER: The 3rd respondent herein issued tender notice dated 3.1.2011 inviting tenders on e-procurement platform for the work namely “periodical renewals-2010-11 from KM 129/927 to 145/660 and 195/335 to 199/0 of Digamarru-Ongole Road of NH-214A in (R & B) N.H. Division, Vijayawada”. The petitioner, who claims to be eligible to participate, uploaded his tender on the website enclosing documentary evidence to show the fulfilment of the eligibility criteria. However, the petitioner’s price bid was not opened on the ground that his technical bid was not in order and the price quoted by the respondent No.4 herein who was stated to be the only qualified bidder, was found to be the lowest. Aggrieved by the said action of the respondents 1 to 3, the present writ petition is filed contending inter alia that the allegation that he had not submitted all the required documents as per the terms and conditions prescribed in the tender notification was in-correct and without any basis. It was also pleaded that the price quoted by the 4th respondent was almost Rs.40 lakhs more than the price quoted by the petitioner and that though he made a detailed representation dated 31.01.2011 bringing to the notice of the respondents that the documents submitted by him were in order, the respondents 1 to 3 failed to consider the same. Hence the present writ petition seeking a declaration that the action of the respondents 1 to 3 in rejecting the petitioner’s tender is arbitrary and illegal. The 3rd respondent filed a counter-affidavit on behalf of the respondents 1 to 3 stating that in response to the tender notification dated 3.1.2011 five bids were received within time including the petitioner’s bid. The technical bids of the tenderers were opened on 21.01.2011 and in the technical bid evaluation it was found that the 4th respondent was the only qualified bidder. Accordingly its price bid was opened on 2.2.2011 and the price quoted by it at 4.99% excess than ECV was recommended to the 2nd respondent for acceptance. So far as the petitioner herein is concerned, it is stated that he had not uploaded his solvency certificate as per the terms and conditions and moreover the invoice uploaded by him pertaining to the Hot Mix Plant was not visible to know the capacity of the same. Since the submission of the solvency certificate in proforma was mandatory and similarly as per Clause-33 (e), the Department would not take any responsibility if any of the documents were not visible/viewed/legible on the website and such documents would not be considered for evaluation, the petitioner’s technical bid which was not in accordance with the terms and conditions stipulated in the tender notification was rightly rejected. In the counter-affidavit filed on behalf of the 4th respondent, while denying the petitioner’s contention that his bid was found suitable in the technical bid evaluation, it is stated that since the 4th respondent was found to be the only qualified lowest tenderer, the same was rightly recommended to the 2nd respondent for acceptance. It is also contended that as per the tender conditions the submission of solvency certificate in proforma was mandatory and since the petitioner failed to satisfy the same and also the invoice uploaded pertaining to the Hot Mix Plant was not legible, the action of the respondents 1 to 3 in rejecting his tender cannot be held to be illegal. I have heard Sri P. Venugopal, the learned counsel for the petitioner, the learned Government Pleader for Transport, Roads & Buildings appearing for the respondents 1 to 3 and Sri Vedula Venaktaramana, the learned Senior Counsel appearing for the respondent No.4. As could be seen from the material available on record, the petitioner’s tender was rejected on two grounds namely (1) the solvency certificate issued by the petitioner’s Banker was contrary to the proforma in Annexure-V (b) of G.O.Ms.No.94, dated 1.7.2003; and (2) the invoice pertaining to the Hot Mix plant which was uploaded by the petitioner along with his tender schedule on the website was not legible to know the capacity of the same. The Notice Inviting Tender (NIT) dated 3.1.2011 contained all the tender details including the eligibility criteria, procedure for bid submission, general terms & conditions, qualification requirements, details of documents to be submitted and etc. It was made clear in NIT that the bidder should submit his response to the tender on e- procurement platform by following the procedure specified therein. Clause (d) of the General Terms & Conditions provided that the procedure needs to be followed as instructed on the website while submitting the tenders online. As per Clause (vi) of the Qualification Requirements, the tenderer to qualify for consideration of award of contract shall demonstrate liquid assets/credit facilities/solvency certificate from the Nationalized/Scheduled Banks of value not less than Rs.2,09,94,233/-. In the Document Details it was explained that the proof of liquid assets in the shape of solvency certificate, etc., for the required amount should be taken not earlier than 1.2.2010 and that it was also made clear that the said document was mandatory. It is not in dispute that in compliance with Clause (vi) of the Qualification Requirements, the petitioner had uploaded the solvency certificate, dated 21.01.2011 issued by the State Bank of India, Bazar Branch, Guntur District. However, the said solvency certificate was not in the proforma prescribed in G.O.Ms.No.94, dated 1.7.2003. According to the respondents, the solvency certificate should be submitted in the format specified in the tender document failing which the tender should be treated as incomplete and it would summarily rejected. Annexure-V (b) enclosed to G.O.Ms.No.94, dated 1.7.2003 contained the form of solvency certificate and according to the respondents the certificates submitted by the bidders should invariably be in the said format. It is explained by the learned Government Pleader that the Government issued G.O.Ms.No.94, dated 1.7.2003 giving comprehensive guidelines for preparation of tender schedules and acceptance of the tenders and the annexures to the said G.O. were part and parcel of the tender schedules and therefore, the proformas annexed and guidelines issued in G.O.Ms.No.94 were mandatory and all contractors should fulfil the said conditions. It is also pointed out by the learned Government Pleader that in the General Terms & Conditions of NIT, it was made clear that the procedure for bid submission should be followed as per G.O.Ms.No.94, dated 1.7.2003. The fact that the tender notice dated 03.01.2011 was issued in terms of the Government instructions vide G.O.M.S.No.94 dated 01.07.2003 has not been disputed by the petitioner. Therefore, the respondents 1 to 3 were justified in insisting that the solvency certificate should be furnished in the format prescribed in G.O.M.S.No.94 dated 01.07.2003. Hence the action of the respondents in not accepting the solvency certificate uploaded by the petitioner, which was admittedly not in the prescribed format, cannot be held to be arbitrary or illegal. Coming to the second ground upon which the petitioner’s tender was rejected, it is to be noticed that Clauses (e) & (f) of General Terms and Conditions of NIT which provided for the legibility of the documents uploaded by the tenderers read as under: “(e) The bidders shall ensure that the documents scanned and uploaded by them shall be retrievable from the website, and they shall be clear, visible and legible. The department will not take any responsibility if any of the documents are not visible/viewed/legible on the website and such documents will not be considered for evaluation. (f) The scanned and uploaded and signed documents of bidders only will be considered for evaluation of the technical bids and any other documents submitted other than the scanned and uploaded will not be considered.” Clause-34 of NIT prescribed the qualification requirements and sub-clause (v) of Clause-34 provides that the tenderer should demonstrate availability (either owned or leased) of the Hot Mix Plant 100-120 PPH Batch mix type. The different capacities required to be possessed by the Hot Mix plant have also been clearly specified in the said clause. The petitioner states that in compliance with Clause-34(v) he had uploaded the document to demonstrate the capacity of the Hot Mix plant. A copy of the said document has been filed at page-28 of the material papers enclosed to the writ petition. Relying upon the said document, the learned counsel for the petitioner vehemently contended that the allegation of the respondents that the said document was not legible to find out the capacity of the Hot Mix plant was incorrect and without any basis. Since the said plea was disputed by the respondents, the original record relating to the tender in question was called for and the learned Government Pleader for Transport and Roads & Buildings placed before this Court the entire record, including the documents uploaded by the petitioner along with his tender schedule. A perusal of the said record shows that the invoice of Gujarat Apollo Equipments Limited uploaded by the petitioner along his tender schedule to demonstrate the capacity of Hot Mix plant possessed by him was absolutely illegible. Thus, the action of the respondents 1 to 3 in not considering the said document while evaluating the petitioner’s tender was in accordance with Clause 33 (e) of the NIT and therefore the respondents cannot be found fault with in rejecting the petitioner’s technical bid. As could be seen, this is a case where the petitioner failed to comply with the essential conditions prescribed in the tender notice and thus he is a disqualified tenderer. In the circumstances, even assuming that the price quoted by him is the lowest, he being a disqualified tenderer, the question of considering the price quoted by him does not arise. Hence, the impugned action of the respondents 1 to 3 cannot be held to be illegal. In the absence of any material on record to infer mala fide design on the part of the respondents 1 to 3 to favour the respondent No.4 and moreover since the petitioner failed to make out any case to show that the action of the respondents 1 to 3 in rejecting his technical bid was arbitrary or illegal, the interference by this Court is not warranted on any ground whatsoever. Accordingly, the Writ Petition is dismissed. No costs. ______________ G. ROHINI, J. Dt. 24.08.2011 gbs