*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.436 of 2011 %01-03-2011 # P.L. Reddy & Company ..petitioner And $Govt. of A.P., Rep. by its Principal Secretary, Roads & Buildings Department, Secretariat, Hyderabad and others ..Respondents !Counsel for the petitioner : Sri V.R.N Prashanth ^Counsel for respondents . : G.P. for RR 1 to 4 Sri D. Prakash Reddy for R-5 < Gist: > Head Note: Citations: 1) (2001) 2 SCC 451 2) (2009) 11 SCC 9 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.436 of 2011 ORDER: The petitioner is a Special Class Contractor. The 1st respondent issued tender notification on 01-10-2010, in relation to the work of improvements to the road, between Chinnagottigallu to Mangalampeta, via Ramireddipalle, in a stretch of 10 K.Ms. The cost of the work is estimated at Rs.4,30,58,167/-. The petitioner, the 5th respondent, and certain others submitted their tenders. The 5th respondent was selected as the successful tenderer. The petitioner feels aggrieved by the same. The contention of the petitioner is that the 5th respondent did not satisfy certain important conditions in the tender notice, be it, in relation to owning of certain items of machinery, or completion of the work, as specified in Clause 4 of the tender notice. It is stated that the Superintending Engineer, R & B Circle, Chittoor, the 4th respondent herein, who scrutinized the tenders, disqualified the 5th respondent at the technical bid stage itself, but the Chief Engineer, the 3rd respondent, that intervened and cleared the case of the 5th respondent for price bid. The petitioner states that the Competent Authority i.e. the Commissionerate of Tenders, the 2nd respondent, has overlooked some important aspects, and selected the 5th respondent, solely on the ground that the rates quoted by it are economical. The 4th respondent filed a counter-affidavit, on behalf of respondents 1 to 4. It is stated that though at one stage, the 5th respondent was disqualified, the 3rd respondent has taken the view that the price bid of the 5th respondent can be opened, in view of the instructions issued by the 2nd respondent, from time to time. It is alleged that the so-called defects attributed to the 5th respondent were found to be trivial and that the tender of the 5th respondent was accepted, on finding that there is variation of 20%, between the rates quoted by the petitioner and those, quoted by the 5th respondent. The 5th respondent has also filed counter-affidavit. According to them, the allegation of the petitioner, that the work to the tune, specified in clause 4 of the tender condition was not executed by it; is not correct, and that adequate proof of compliance with the condition was placed before the concerned authorities. It is also stated that two items of machinery are very much at the disposal of the 5th respondent, and affidavit to that effect was filed. Sri V.R.N. Prashanth, learned counsel for the petitioner submits that, each and every condition stipulated in the tender notice has its own significance, and that no deviation from them is permissible. He contends that, according to condition No.4.1, a tenderer must file proof to the effect that he has satisfactorily completed the works of similar nature of the value of, not less than Rs.1,07,64,542/-, in one financial year, between 2005 and 2010. It is also his case that as many as 9 items of machinery were required to be owned, and admittedly, the 5th respondent did not own concrete mixtures or pug-mill or pan type mixer of concrete batching plant. He places reliance upon the judgments of the Supreme Court in West Bengal State Electricity Board v. Patel Engineering Co. Ltd., and others[1], and Sorath Builders v. Shreejikrupa Buildcon Limited and another[2]. Learned Government Pleader for respondents 1 to 4, and learned Senior Counsel Sri D. Prakash Reddy, for respondent No.5, on the other hand, submit that there was initially some doubt, as to the acceptability of the experience certificate, filed by the 5th respondent, and that the same stood clarified on further verification. It is also stated that the 5th respondent has filed affidavits, stating that the two items of machinery, referred to above, are at his disposal. Learned counsel further submit that the NABARD, which is the financing agency, has suggested that the lowest bid of the 5th respondent be accepted, subject to verification of other conditions, since the difference between the rates quoted by the petitioner and the 5th respondent is too high. The value of the contract is about Rs.4.3 crores. The tender conditions insist, inter alia, that a tenderer must have satisfactorily completed the work of, 1/4th of the said value in one financial year, between 2005-2010. Another condition is that the tenderers must demonstrate the availability of 9 categories of machines. The relevant clause is to the effect that the availability must be in the form of ownership, or with proof of list, about the said machinery. The evaluation of the tender is at two stages, viz., technical bid and price bid. It is only those are cleared in the technical bid stage, that could be considered for price bids. There was some uncertainty as to the eligibility of the 5th respondent, as to his eligibility to clear the technical bid. The 4th respondent, in fact, took the view that the 5th respondent did not clear the two aspects, referred to above. The 3rd respondent, however, has taken the view that the material produced by the 5th respondent needs to be examined carefully, in view of the note of caution sounded by the 2nd respondent, that contractors shall not be disqualified at the technical bid stage on trivial grounds. It is in this background, that the 5th respondent was cleared at the technical bid stage. The price bids of the petitioner and the 5th respondent were opened, and it emerged that the rates quoted by the 5th respondent are nearly 20% less than, those, quoted by the petitioner. The 2nd respondent took the same into account and declared the 5th respondent as the successful tenderer. At the time of taking final decision, the views of the NABARD, which is the financing agency, were ascertained. It expressed the view that the tender of the 5th respondent be accepted, subject to further verification. One of the contentions urged by the petitioner is that the 5th respondent did not place the proof of its satisfactory completion of work to the tune of about Rs.1.7 crores in one of the preceding five years. In this regard, the experience certificate issued by the Superintending Engineer of Yelahanka Zone, in favour of the 5th respondent assumes significance. The certificate is to the effect that the 5th respondent was awarded the contract of widening, improvement, and Asphalting of Honnur road from Kannoor Junction to Mylahalli Village. The value of the contract is Rs.2.88 lakhs. The bills for the work were paid between 30-08-2009 and 30-03-2010. The petitioner contends that there is no mention in the certificate that the works were satisfactorily completed and that the completion, if at all, has spilled beyond March, 2010. Firstly, the very fact that the bills were paid discloses that the work was completed to the satisfaction of the authorities and there need not be any special mention about it. Secondly, the final bill itself was paid on 30-03-2010, which is very much within the slab period. Therefore, it cannot be said that the 5th respondent did not fulfill condition No.4. Coming to the possession of the machinery, the 5th respondent has field a declaration to the effect that it has already possessed 7 items of machinery, and for two others, orders were placed for purchase. An undertaking was also given to the effect that, in case the items of machinery are not shown, by the time the contract is awarded, not only the contract may be cancelled, but also it may be blacklisted. This weighed with the respondents, and the offer made by the 5th respondent was accepted. In West Bengal State Electricity Board v. Patel Engineering Co. Ltd., and others (1 supra), the question was, as to whether a tenderer can be permitted to correct the entries, after the due date. In the facts of that case, but for the correction, the tenderer concerned was not eligible to be awarded the work at all. The Supreme Court held that, no contract can be awarded to a tenderer by permitting corrections, after the stipulated date. Sorath Builders v. Shreejikrupa Buildcon Limited and another (2 supra) is almost on the same lines. The ratio in the said judgments does not apply to the facts of the case. Neither any correction was permitted, nor any documents were permitted to be supplied, after the due date. The interpretation of clauses of contract would depend much upon the understanding of the concerned authorities, particularly, when it is scrutinized at various stages. When the so-called defects are trivial, the respondents 1 to 4 cannot be expected to bring about a situation, where the petitioner alone is left in the field, and they are burdened to the extent of about Rs.1 crore more for execution of the work. This Court is not inclined to interfere with the decision taken by respondents 1 to 4, in awarding the contract to the 5th respondent. The writ petition is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.01-03-2011. Note: L.R copy to be marked. (B/O)KO [1] (2001) 2 SCC 451 [2] (2009) 11 SCC 9