Kwality Construction Engineers vs Chief Engineer, Government of A.P. and another

The refusal of the respondent Corporation to issue Tender Schedule to the petitioner''s firm on the ground that the petitioner did not fulfill Condition No.5 of the tender notice is assailed in this writ petition. The controversy brought before the Court turns around the question whether the petitioner had executed similar group of works for Rs.120 (One Hundred and Twenty) lakhs or similar single work for Rs.30 (Thirty) lakhs during the financial years 1996-97,1997-98 and 1998-99. If the Court were to answer this question positively, the refusal to issue tender schedule to the petitioner should be held to be unjustified and illegal, and on the other hand if the Court were to answer this question negatively, the petitioner cannot seek mandamus.

The factual matrix of the case be noted briefly as under :

The respondent Corporation issued Tender Notification No.4/APHMHIDC/99-2000, dated 9-6-1999 calling for tenders for award of two items of works. This case relates to item (2) work i.e., construction of hostel building for girl students in the premises of Nature Cure Hospital at Hyderabad. Under the Tender Notification, the last date for receipt of application for tender documents was 28-6-1999, and 8-7-1999 was fixed as the last date for receipt of the tenders and for opening the tenders. At this stage, the writ petition was filed in this Court on 7-7-1999 and on the same day, this Court while entertaining the writ petition issued an interim direction not to finalise the tenders. Learned Standing Counsel for the respondent Corporation is not in a position to tell the Court whether the tenders were opened on 8-7-1999 or not.

The Condition No.5 of Tender Notice reads :

"5. Applications for supply of tender documents should reach this office along with (i) the contractors recent photograph attested by a Gazetted Officer (ii) separate D.Ds. towards cost offender schedules and EMD at 1.50% and attested xerox copies of registration certificate, latest 1TCC, latest sales tax clearance certificate and experience certificate issued by the Government/Quasi Government Executive Engineer having executed group of similar nature of works. For item No.l, Group of works for Rs.92.00 lakhs or single work for Rs.23.00 lakhs. For item No.2, Group of works 120.00 lakhs or single work Rs.30 lakhs, during any one year of the preceding three-financial years (i.e., 1996-97 onwards).

As per this condition, an applicant for the contract should have the experience of having executed group of similar works for Rs.120 lakhs or a single similar work for Rs.30 lakhs during any one year of the preceding three financial years. Since the tender notification was issued on 9-6-1999, it may be noted that the petitioner in order to qualify itself to apply for the contract, should have executed group of similar works for Rs.120 lakhs or single work for Rs.30 lakhs during any of the financial years 1996-97 or 1997-98 or J998-99. The question is whether this prescription is satisfied by the petitioner.

In the counter-affidavit filed by the respondent-Corporation, in para 4, it is stated that when Sri V. Sudhakar, power of attorney of the petitioner submitted the application dated 23-6-1999 on 28-6-1999, he, alongwith the application, furnished three experience certificates. The details of the three certificates are set out in para (4) of the counter-affidavit. I do not find it necessary to refer to the Certificates (1) and (2). The 3rd certificate relates to the construction of staff quarters at Sanga Reddy for Rs.50,62,560/- executed by the petitioner firm between 25-5-1995 and 31-3-1997. In this certificate, the financial year-wise breakups of work are not furnished, and value of the work executed during the financial year 1996-97 is also not separately mentioned. The petitioner has not produced any other experience certificate for having executed the similar work during the financial years 1997-98 and 1998-99. The only relevant certificate produced by the petitioner firm covering the financial year 1996-97 is not and cannot be a proof to conclude or establish that the petitioner during the financial year 1996-97 had executed either group of similar works for Rs.120 lakhs or more, or a single similar work for Rs.30 lakhs or more, during the financial year 1996-97. In other words, there is absolutely no proof to satisfy the Court that the petitioner has fulfilled the Condition No.5 of the Tender Notice. However, the argument of the learned Counsel for the petitioner is that the view taken by the Corporation not to issue tender schedule is too much technical, particularly having regard to the proof produced by the petitioner for having executed the large quantum of work for Rs.3,46,61,710.63 ps. during the financial year 1996-97, and the work for Rs.3,24,60,425.00 ps. during the financial year S997-98, as reflected in the Income Tax clearance certificate produced by the petitioner firm at pages 16 and 17 of the material papers. This certificate is of no help to the petitioner to contend that the petitioner had in fact executed similar group of works for Rs.120 lakhs or more, or similar single work for Rs.30 lakhs or more, during those two financial years. Since the petitioner has utterly failed to produce any proof before the Corporation 01- before the Court by way of evidence to show that it has satisfied the Condition No.5 requirement, issuance of writ of mandamus to the respondent-Corporation to issue tender schedule to the petitioner or to interdict the lender proceedings does not arise. The writ petition is therefore dismissed with no order as to costs.