THE HON’BLE Ms. JUSTICE G. ROHINI Writ Petition No. 7294 of 2010 Dated: 30.07.2010 Between: Rani Infrastructure Development Limited, 203, Navketan Complex, Sarojini Devi Road, Secunderabad-500 003, rep. by its Joint Managing Director Sri G. Shreehari … Petitioner And 1. State of A.P., rep. by its Principal Secretary, (Transport, Roads & Buildings) Secretariat, Hyderabad, and 2 others. Respondents THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION No. 7294 of 2010 O R D E R : This writ petition is filed seeking a declaration that the action of the respondents in seeking to disqualify the petitioner in response to the tender notice issued by the 3rd respondent-Superintending Engineer, R&B, Rural Circle, Balkampet, Hyderabad vide “e” NIT No.38090/EE/CRF/DEE-4/AEE-1/2007 dated 05.02.2010 for “construction of four-lane Road in lieu of L.C. no at Lingampally Bye pass on Nanakramguda to Nallagandla Road at K.M.14/4-6 in road in Rangareddy District (approaches only)” as arbitrary and illegal and violative of Articles 14 and 19 (1) (g) of the Constitution of India. The facts, in brief, are as under: The third respondent issued “e” NIT No.38090/EE/CRF/DEE-4/AEE0- 1/2007 dated 05.02.2010 inviting tenders for the work of “construction of 4 lane Road in lieu of L.C. no at Lingampally Bye pass on Nanakramguda to Nallagandla Road at K.M.14/4-6 in road in Rangareddy District (approaches only)” through “e” procurement platform. The estimate contract value put to tender was Rs.25,56,37,908/- and the last date for submission of tenders was 5.3.2010. The date of opening of technical bids was 5.3.2010 at 4.30 p.m. and the date of opening of the price bids was 10.3.2010. It is not in dispute that the price bids of such tenderers who are determined to have complied with the eligibility criteria will only be opened. The petitioner company which claims to have carried out several works relating to construction of highways, railways, irrigation, hydel and other infrastructure developmental projects in the field of civil engineering for almost 25 years all over India and abroad, submitted its bid uploading the requisite documents on line within the time stipulated. However on 17.3.2010 the petitioner was informed that the petitioner was not selected in technical evaluation stage and the petitioner was advised to log in at http://tender.eprocurement.gov.in to view more details. It is stated that when the petitioner tried to log in, the website indicated error message and therefore, the petitioner could not get any details. In the circumstances, the Manager (Co-ordination) of the petitioner- company met the concerned Technical Superintendent and he was orally informed that the petitioner’s technical bid was rejected on the following grounds: (a) That the Joint Venture experience of the petitioner is not being considered since the petitioner is not the lead partner in the JV and the basis for arriving at the said conclusion was that the name of the JV is Lanco-Rani and not Rani-Lanco. (b) That the petitioner had not enclosed any certificate in support of the criteria of having successfully completed Raod Over Bridge (ROB)/Major Bridge of similar nature of value not less than Rs.4,26,06,318/-. (c) That the petitioner did not furnish the particulars of quality control lab. (d) That the VAT clearance certificate was not uploaded by the petitioner. As the reasons shown by the respondents were factually in correct and untenable, the petitioner by letter dated 19.03.2010 addressed to the 2nd respondent furnished clarifications on all the points. Without considering the petitioner’s representation, as the respondents were proceeding to finalize the tenders, the present writ petition has been filed with the above prayer. In the counter-affidavit filed by the 3rd respondent - Superintending Engineer, R & B, it is stated that whereas in the Bid document it was clearly mentioned that the “bidders should have completed similar value of work of ROB / Major Bridges in the last five financial years ending with 31.3.2009 in any one year”, it was found that the experience certificates uploaded by the petitioner along with his bid were not relevant to the work stipulated in the NIT. It is explained that seven bidders had participated in the tender and the technical bids were opened as scheduled on 5.3.2010. Though the opening of the price bids was scheduled on 10.3.2010, the technical evaluation of all the seven bidders could be completed on 17.3.2010. Out of the seven bidders participated, 3 bidders including the writ petitioner were disqualified as they failed to satisfy the eligibility criteria. So far as the writ petitioner is concerned, it was found that the bidder had not submitted the relevant certificates / documents in proof of having executed similar nature of works of ROBs/Major bridges. The price bids of the four technically qualified bidders were opened on 17.3.2010 and the lowest qualified bid of M/s. R.S.V. Constructions Private Limited, who had offered 12.60% less than ECV was recommended to the Engineer-in-Chief vide 3rd respondent’s letter dated 18.3.2010 for onward submission to Commissionerate of Tenders for consideration and acceptance. The petitioner filed a reply affidavit disputing the stand taken by the respondents that the experience certificates uploaded by the petitioner were not relevant to the conditions specified under NIT. It is contended by the petitioner that the tender conditions at more than one place made it clear that the work that was put to tender was approach portion of ROB and not the ROB itself. It is also contended that even the principal components of work that was put to tender confirmed that the work that was put to tender was not the ROB itself but it was only approaches to ROB. Therefore, the action of the respondents in disqualifying the petitioners on the ground of lack of experience in construction of ROB and Major bridges was arbitrary and not in conformity with the tender requirements. I have heard the learned counsel for both the parties and perused the material available on record. The learned counsel for the petitioner vehemently contended that the respondents had completely misunderstood the very nature of the work which was put to tender. While reiterating the stand taken in the writ petition that the work that was put to tender was approach portion of ROB, it is vehemently contended that the rejection of the petitioner’s bid on a misconception that the work that was put to tender was ROB itself is arbitrary and illegal. It is also pointed out by the learned counsel for the petitioner that out of the experience certificates submitted by the petitioner, the Certificate No.4 was not taken into consideration on the ground that as on 31.03.2009 the work was “substantially completed” which implied that the work was not completed in the last five financial years i.e., 2004-2005 to 2008- 2009. The learned counsel contended that the action of the respondents in not considering the said certificate was erroneous and illegal as the Substantial Completion Certificate was issued when the road was through and the traffic started moving smoothly. It is submitted by the learned counsel for the petitioner the non-consideration of the said Certificate which is otherwise in conformity with the requirements of the NIT, is absolutely arbitrary and illegal. It is further contended that the respondents ought to have sought a clarification from the petitioner or even the National Highways Authority of India instead of rejecting the petitioner’s bid at the threshold. On the other hand, the learned Government Pleader contended that the work in question is a major bridge across the railway track and therefore it was stipulated in the eligibility criteria that the bidders should have experience in execution of similar nature of works of Road over Bridges / Major Bridges. As could be seen the conditions of tender are not assailed by the petitioner, but the controversy raised is only with regard to the nature of the work for which the tenders are invited. According to the petitioner, the work that is put to tender is only approach portion of ROB and therefore the certificates of experience produced by him are sufficient to satisfy the eligibility criteria. To substantiate the said plea, the learned counsel for the petitioner placed much reliance upon the description of the work in the Bid document, with particular reference to the words “approaches only” which are put in brackets. However, according to the respondents, the work which is put to tender is a Major bridge across the railway track and that the Road Over Bridge approaches included viaduct portion and also non-viaduct portion. The controversy between the parties cannot be decided by this Court on the basis of the mere affidavits of the parties, particularly in view of the reason that this Court lacks technical expertise. Even assuming that the work that was put to tender was ROB itself and the bidder should have possessed the required experience of completing similar nature of ROB/Major Bridge Works, the petitioner contends that the Certificate dated 21.04.2009 submitted by it relating to the completion of four-laning of KM 419 to KM 447 on Purnia – Gayakota Section of N.H.31 in the State of Bihar is sufficient to satisfy the eligibility criteria. The contention of the petitioner is that the said certificate was ignored by the respondents on an erroneous assumption that the said work was not substantially completed in the last five financial years i.e, from 2004-05 to 2008-09. It is not disputed before this Court that the Commissionerate of Tenders (COT) is the competent authority to finalize the tender process and pursuant to the 2nd respondent’s letter dated 18.3.2010 recommending the name of the lowest bidder, the COT would scrutinize all the tenders submitted by the 2nd respondent in accordance with the conditions stipulated in the NIT/ Bid Document. The learned Government Pleader submitted that in case any discrepancy of non- adherence to the conditions of the Bid document, the same would be communicated by COT which would be binding both on the Tender Inviting Authority and the bidder. It is also submitted that the decision so taken by COT on tenders shall be final. Admittedly a final decision is yet to be taken by the COT which is an expert body consisting of Board of Chief Engineers. Moreover the petitioner has already submitted a detailed representation dated 19.3.2010 raising various objections against the rejection of its technical bid. In the circumstances, in my considered opinion, the interests of justice would be met if the COT is directed to consider the objections raised by the petitioner and pass an appropriate order before finalizing the tenders. Accordingly, without expressing any opinion as to the correctness of the 2nd respondent’s decision in rejecting the technical bid of the petitioner, the Writ Petition is disposed of with a direction to the Commissionerate of Tenders to consider the representation/objections dated 19.3.2010 submitted by the petitioner and pass appropriate orders in accordance with law before taking a final decision with regard to the tenders invited under NIT, dated 5.2.2010. It is also open to the petitioner to submit further objections, if any, within a period of one week from today. If any such objections are filed within the time fixed above, the same shall also be taken into consideration by the Commissionerate of Tenders and an appropriate order shall be passed in accordance with law within two weeks thereafter. Writ Petition is accordingly disposed of. No costs. -------------------- G. ROHINI, J. Dt. 30.07.2010 gbs