Progressive Constructions Ltd., Hyd vs Superintending Engineer, Irrigation, Telugu Ganga Project Circle, Cuddapah and others

Heard the learned Counsel for the petitioner as well as the respondents. Both the Counsel have agreed for final disposal of the writ petition.

The petitioner-Progressive Constructions Limited, seeks to issue a writ of mandamus declaring the action of the respondents 1 to 3 in not opening cover-B of the petitioner''s bid in respect of Tender Notice No.2 CBR/98-99 dated 10-3-1999 on the ground that the petitioner-company is not qualified to bid in accordance with the terms of the tender is irrational arbitrary and violative of Article 14 of the Constitution of India and to direct them to open the bid and evaluate the same along with other tenders.

Facts of the case, in brief, are as follows:-The matter relates to the construction of Chitravathi Balancing Reservoir near Pamapalli village, (balance work and rectification works) at Cuddapah District.

The Superintending Engineer (Irrigation), Telugu Ganga Project Circle, Cuddapah, issued tender Notification No.2 CBR/98-99 dated 10-3-1999 inviting tenders from the contractors registered in I and CAD Department and there was an amendment to the tender notice which was published in Vartha News daily dated 15-3-1999 and Hindu dated 16-3-1999 and as per the amended tender notification, the approximate value of the work is Rs.29.33 crores (including Part I and II of Schedule-A). Period for completion of work is fixed 27 months. It is a lump sum contract to be executed by such of those eligible contractors registered as Special Class (civil) with specialisation in earth work, canal lining and bridges other than structures as per G.O. Ms. No.52l dated 10-12-1984 or special class (civil) as per G.O.Ms.No.178 dated 27-9-1997 and G.O.Ms.No.132 dated 11-8-1998 are eligible for tender schedules. Dates for receipt of tender applications and to issue of tender schedules is from 15-3-1999 to 29-3-1999. The dates for receipt of tenders is from 15-3-1999 to 30-3-1999 upto 3-00 p.m. The date of opening of tenders, Cover-A is 1-4-1999 at 11.00 a.m. and Cover-B is 6-9-1999 at 11.00a.m.

As per Note No.1(a) of tender notice to qualify for award of the contract, the bidder in his name should have, during the last five years (from 1994-95 to 1998-99) satisfactorily completed (not less than 90% of the contract value) as prime contractor, similar works of value not less than Rs.1467 lakhs in any one year. In note 2(b) minimum quantities of works executed in any one year was also specified i.e., for cement concrete 23,000 cum, R.R. Masonry - 25,000 cum, and Steel Recinforcement 200 MT. The tender notification specifically specified that the tender procedure is as per G.O.Ms.No.23. I and CAD Department dated 5-3-1999. Pursuant to the tender notice, 9 numbers of tender schedules have been purchased by the different contractors but only six numbers of tenders for the work were received. The petitioner is one of the tenders which submitted its tender.

Technical bids were submitted in sealed cover ''A'' and price bids were submitted in sealed cover ''B'' by the tenderers. Cover-B containing the price bids are proposed to be opened after evaluation of technical bids in Cover-A. Sealed covers containing technical bid documents were opened on 1-4-1999 p.m. in respect of six tenderers namely; (1)National Projects Constructions Corporation Limited, (2) M/s. Hindustan Steel Works Construction Limited, (3) M/s. Srinivasa Constructions, (4) M/s. Pioneer Builders, (5) M/s. Progressive Constructions and (6) M/s. Gayathri Projects. On opening of the technical bids, it was found that M/s. Gayathri Projects, have not furnished Earnest Money Deposit amount, and therefore, as per the rules, no tender for execution of the works can be received unless accompanied by the Earnest Money Deposit. Hence, bid furnished by M/s. Gayathri Projects, is rejected and not considered for the evaluation. Technical bids of five tenders were taken up for consideration.

To determine the contractors'' compliance with the requirements in the bid documents, the technical bids are evaluated in terms of availability of data/information and documents. As per the tender condition No.19.2(a) at Pages 16,17 and 18 of the tender document booklet, to qualify for award of the work, the bidder in his name should have during the last 5 years i.e., from 1994-95 to 1998-99 (i) satisfactorily completed (not less than 90% of the contract value) as a prime contractor similar works of value not less than Rs.14.67 crores in any one year (ii) executed in any one year the following minimum quantities of work:

(a) Cement concrete - 23,000 cum

(b) RR/CR Masonry - 25,000 cum

(c) Steel reinforcement - 200 MTs.

On scrutiny of the technical bids, it was noticed that the stipulations for eligible criteria to qualify for award have not been furnished in proof of execution of the similar works undertaken by them in any one year of the preceding 5 years and completed by them not less than 90% of the contract value with a turnover of not less than 1467 lakhs in any one year.

It is stated that since this is the first tender called in the State after issue of G.O.Ms.No.23, I and CAD dated 5-3-1999 an opportunity was given to the aforesaid five tenderers to submit the information as per the proforma by 12-4-1999 duly postponing the date of opening of the cover ''B'' (price bid) to 17-4-1999. Accordingly, 5 tenderers furnished the information called for in the prescribed proforma and the technical bid evaluation is made and only two tenderers have been found qualified, they are : (1) M/s. National Projects Construction Corporation Limited (2) M/s. Hindustan Steel Works Construction Limited and the other three tenderers including the petitioner was found not qualified and the petitioner was not qualified as the work experience in respect 90% competed works found not satisfactory. Accordingly, a letter No.DW/ TS/CBR/T1/74 dated 24-3-1999 was addressed by the Superintending Engineer, Telugu Ganga Project Circle, Cuddapah, to the petitioner stating that the information submitted by the petitioner was scrutinised to qualify for the award and by giving a detailed reasoning it is stated in the last para as follows:

"Your contention that you can qualify for the works of value of 29.00 crores since you could qualify and executing the work of the value of Rs. 124.68 crores is not correct, since the eligibility or otherwise of the bid will be determined in the light of the conditions and terms stipulated in the tender notice for the respective work. In view of the non-fulfilment of the conditions provided in the tender notice in respect of completion of similar works (by not less than 90% of value of work) with annual turnover of Rs. 14.67 crores in any one year during the last five years, your bid determined as disqualified."

The said letter of the 1st respondent though received by the petitioner subsequent to the filing of the writ petition, the same has not been questioned in the writ petition, but the petitioner questions, the action of the respondents in not opening the price bid cover ''B'' of the petitioner''s bid on the ground that the petitioner is qualified if proper interpretation is made in respect of the tender conditions and the learned Counsel for the petitioner wants this Court to interpret the tender condition of Note 1 which was clearly stated in condition No.19 of the tender notice of Part-A Technical bid document. The petitioner wants to read the tender conditions 19.2 (a)(i) satisfactorily completed (not less than 90% of the work) as prime contractor, similar works with turnover not less than 14.67 crores in any one year means 90% of the present work in question but not the previous contract which the petitioner has completed. The aforesaid clause clearly states that satisfactorily completed not less than 90% of the previous contract atone, and there is no ambiguity and this Court cannot mean or interpret in a different manner in which it is clearly stipulated.

Admittedly, the petitioner has not questioned the conditions imposed either in G.O.Ms.No.23 and I and CAD Department dated 5-3-1999 or the tender condition No.19 of the technical bid document Part-A, but only states that the words ''satisfactorily completed'' (not less than 90% of the contract value) of similar woks with turnover not less than Rs.14.67 crores in one year means in respect of the present contract but not in respect of the previous contract. There is no justification to accept the contention of the learned Counsel for the petitioner. ''Satisfactorily completed'' of the similar works mean of the previous works alone and it cannot be read or treated in respect of the present contract.

In my considered view the respondent shave correctly interpreted and the said interpretation is strictly in accordance with the tender conditions and there is no ambiguity or confusion but to suit the experience of the petitioner, the petitioner wants to interpret in a particular manner which is not possible, and therefore, the said contention of the learned Counsel for the petitioner is not acceptable.

The conditions stipulated in G.O.Ms. No.23 dated 5-3-1999 with regard to the qualification criteria for the award of the work in Para 3.02, it is stipulated that each bidder in his name should have during the last five years satisfactorily completed not less than 90% of the works of value in any one year. According to the above stipulation, only two tenderers have furnished the required data to qualify for the award and the petitioner furnished the list of the following three works:

"(i) Construction of Kapur earth dam -value 28.00 crores completed in 1994.

(ii) Construction of Padagada earth dam -value of work of Rs.42.00 crores -completed in 1996.

(iii) Construction of Nira Deoghar earth dam-value of Rs. 124.68 crores which is under construction to be completed by June, 2000"

The petitioner has not furnished any turnover during in any one of the year''s 1994-95 to 1998-99 in respect of the first two works, but in respect of the 3rd work, the value of the work complete during the years 1997-98 and 1998-99 is (24.78 - 32.59 crores) i.e., only 48% of its contract value of Rs. 124.68 crores and that too the said work was not executed by the petitioner alone, but it was executed under the joint venture by three contractors namely; the petitioner, who is having 60% share, M/s. Ramu Real Estate Developers Private Limited is having 20% share and M/s. RDS Constructions Company is having 20% share and it is difficult to state that what is the actual work executed by the petitioner herein in respect of the said joint venture and whether the petitioner has executed 60% of the work or less, is not known. It is not known whether the other 40% of the share-holders, who have executed the major work. The figures of execution of the work by the respective contractors of the said joint work has not been furnished. But it is only stated that the petitioner is the 60% share holder. Therefore, it is difficult to accept that the petitioner is having required work done criteria to fulfil the special condition of qualification criteria as prescribed in clause 3.02 of G.O. Ms. No.23 I and CAD, dated 5-3-1998.

As per Tender Condition No.19.2(b) bid capacity of the tenderers shall be taken the criteria of his own but not the bid capacity of the Sub-contractor or General Power of Attorney holder. To qualify the award of the contract, each bidder in its name should have the above stated criteria of satisfactorily completing the 90% of the contract value of similar work with a turnover of not less than 14.67 crores in one year, and admittedly the petitioner has not filed arty certificate fulfilling the above said criteria, and therefore, the petitioner if not entitled for consideration of his price bid. In the counter, it is also stated that the experience certificate filed by the petitioner relates to the joint venture of the petitioner and the other two partners and the petitioner has not produced the required experience certificate of the similar works completed in any one year of previous year with the required criteria.

Considering the facts and circumstances of the case, I am of the opinion that the action of the respondents in not, considering the price bid of the petitioner cannot be said to be illegal or arbitrary. This Court cannot sit as a Court of Appeal but only can review the manner in which the decision was made by the respondents and as stated above, the decision taken by the respondents is fair and reasonable and is based on the tender conditions and the conditions stipulated in the G.O.Ms.No,23 dated 5-3-1999. No mala fides have been attributed by the" petitioner and the decision taken by the respondents is reasonable on the facts pointed out above. This Court in exercise of the power of judtsial review will not substitute its opinion for that of the decision making authority, The devision taken by the Superintending Engineer in his letter dated 23-4-1999 which was communicated to the petitioner and not challenged by the petitioner is legal and valid and the petition is devoid of any merit and it is liable to be dismissed.

The learned Counsel for the petitioner relied on a decision of the Supreme Court in the case of New Horizons Limited and Another Vs. Union of India (UOI) and Others, , which indicated that experience of the managing partner has to be considered in respect of the following conditions prescribed therein:

"Tender should have the experience compiling, printing and other telephone directories to the large telephone system when the capacity of more than 50,000 lines. The tender should substantiate this with documentary proof and also furnish credentials in this field".

Whereas the condition prescribed in the present tender schedule as it has already extracted in the foregoing paras and similar issue came up for consideration before a Division Bench of this Court in WA No.1220 of 1998 and the Division Bench has rejected the contention of the firm distinguishing the judgment of the Supreme Court. Admittedly, in the instant case, the requirement of possessing the experience certificate in the same name and style of the firm has not been fulfilled. In similar circumstances, my learned Brother Sri Justice G. Bikshapathy, similarly distinguished the aforesaid case while considering the case of M/s. Tulasi Constructions v. Chief Engineer in WP No.23525 of 1998 dated 5-11-1998 which was also confirmed by the Division Bench of this Court in WA No.1964 of 1998 dated 28-12-1998.

The learned Additional Advocate General relied upon the judgment of the Supreme Court in Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, , in which it was held that when a writ petition is filed in the High Court challenging the question of awarding of the contract, the Court must be very careful to see if there is any element of public interest involved in the litigation and unless the Court is satisfied that there is substantial amount of public interest or the transaction is entered into mala fide, the Court should not intervene under Article 226 of the Constitution of India any dispute between two rival tenders. I have already indicated that the petitioner has not complied with the required qualification criteria for award of the contract and the petitioner has not executed the 90% of the contract value and one similar work of value not less than Rs.1467 lakhs in any one year and the work done certificate relating to the joint venture of the petitioner do not satisfy the requirement of the qualification to qualify for the award of the contract to the petitioner. After rejecting the technical bid of the petitioner, the tenders in respect of Cover-B relating to the financial bids were opened and the eligible tender of the 4th respondent was found to be with percentage less by minus 11.70% and the instant work has to be completed within 27 months and pursuant to the interim direction granted by this Court in WPMP No.10532 of 1999 dated 30-4-1999 staying further proceedings pursuant to the tender notice dated 10-3-1999, the work could not be taken up.

In view of the undisputed question of facts, applicable to the tender conditions, the action taken by the official respondents is justified and the cases cited by the learned Counsel for the petitioner are of no relevance to the facts of this case.

There is no arbitrary or irrational action on the part of the respondents and they have not violated the provisions of Article 14 of the Constitution of India and the petitioner is not entitled for the relief claimed in this writ petition and the writ petition is accordingly dismissed. No costs.