Kolli Bhupathi Reddy v. The State Of Ap & Ors.

Order

The present writ petition is filed aggrieved by the action of 3rd respondent in accepting the financial bid of 5th respondent qua Tender Notice Nos:32/T4/2024-25 dated 18.11.2024 as winning bid without following due process of law and thereby violating the terms of tender notification.

Heard Sri C.Kranthi Kumar, learned counsel for the petitioner (appeared in virtual mode), Sri Bala Krishna, learned Assistant Government Pleader for 2 Panchayat Raj and Sri P.Sai Surya Teja, learned counsel for the 5th respondent. 3(a). Learned counsel for the petitioner in elaboration to what has been stated in the affidavit contended that the 3rd respondent issued Tender notice dated 18.11.2024 for “Operation and Maintenance(O&M) CPWS Scheme to Movva & 41 other habitations including power charges for the year 2024-25” with the estimated contract value of Rs.18,90,876/-. He further submitted that clauses 11 & 19 of the Vol-I of Part-A of the Tender notice lays down that the Eligibility and Qualifying criteria would be as per G.O.Ms.No.195 dated

10.05.1999, G.O.Ms.No.94 (I&CAD) Department dated 01.07.2003, G.O.Rt.No.2290 dated 20.12.2012 and G.O.Rt.No.1292 dated 06.08.2013. Further, the eligibility criteria inserted at S.No.15 of the list of required Bid documents for submitting bids is that every bidder should submit a notarized affidavit with self-declaration (OR) certificates issued Engineer-in-charge of Government Departments/undertakings, not below the rank of Executive Engineer or equivalent and counter signed by the Superintending Engineer or equivalent, showing the value of existing commitments and ongoing works as well as stipulated period of completion remaining for each of the works listed. He further submitted that Clause 23.6 of the Vol-I Part-A of the Tender notice stipulates that the bidder shall be disqualified and the financial bid will not be opened if the bidder fails to submit notarized affidavit as per the eligibility criteria as stated supra. Further the Clause 17 of the Vol-I Part-A of the Tender notice stipulates that if the Bidder’s declaration showing the value of 3 existing commitments and ongoing works as well the stipulated period of completion proves to be false on verification, he will be blacklisted and action will be taken as per rules in vogue. (b) Learned counsel for the petitioner further submitted that the petitioner and the 5th respondent herein have submitted the bids within the stipulated time along with the requisite documents. (c) Learned counsel for the petitioner further contended that the 5th respondent has furnished a false affidavit without disclosing that he is currently executing a work namely “Mandal wise packaging of works for providing FTHCs by Augmentation of existing water supply schemes in 7 habitations of Kanchikacherla Mandal of NTR District” which was sanctioned under G.O.Rt.No.56 PR & RD(RWS-II) Department dated 16.02.2022. The said work supposed to be completed within a period of six months from the date of agreement but the 5th respondent has failed to complete the same within the stipulated period and is in arrears qua the same, detrimentally affecting the water supply to the concerned hamlets in Kanchikacherla Mandal. Therefore, the 5th respondent has falsely assessed Available Bid Capacity which is calculated based on the pending works and submitted false information unduly puffing his capacity than the actual to the detriment of other bidders and the public at large. (d) He further submitted that as per Clause 4.01.5 of the G.O.Ms.No.195 dated 10.05.1999, before recommending/accepting the tender, the tender 4 accepting authority shall verify the correctness of the certificates submitted to meet the eligibility criteria and specifically for experience, the authenticated agreements or previous works executed by the lowest tenderer, shall be called for and the EMD will be returned to the qualified but unsuccessful tenderer either after finalization of tenders or on expiry of validity of tenders whichever is earlier. (e) Learned counsel for the petitioner further submitted that though the said facts were brought to the notice of the 3rd respondent-Tender issuing authority on 11.12.2024 that the 5th respondent has furnished false affidavit hiding the fact that he has a history of dishonoring the commitments given by him pertaining to similar works, he was neither blacklisted nor disqualified from the tender process, which is in violation of terms and conditions of the tender notice as stated above (Clause 17 & 23.6 of the Vol-I Part-A) and further declared the 5th respondent as winner of the bid on 31.12.2024 and were proceeding to enter into agreement for the award of contract. As such prayed to pass appropriate orders in that regard.

4. Sri P.Sai Surya Teja, learned counsel for the 5th respondent on counter submitted that the Government has taken a decision to cancel all the works sanctioned prior to 01.04.2024 that were not grounded immediately. The said decision was communicated to the authorities by finance department and the 5th respondent was informed about the deemed cancellation of his works in the month of September, 2024 and the Finance authorities have supplied a copy of note orders on 27.09.2024 and the same was circulated in the 5 newspapers in the month of October itself. It was further submitted that, pursuant to the G.O.Ms.No.73 of PR & RD(RWS.I) Department dated

21.12.2024, the Superintending Engineer, RWS&S Circle, Vijayawada(3rd respondent herein) issued cancellation orders to the 5th respondent on

23.12.2024 terminating the agreement dated 01.02.2023 as the same are not grounded. He further submitted that, as the agreement itself was cancelled by the 3rd respondent prior to the evaluation and qualification of the tender in the technical bid, the same was not mentioned in the impugned tender (issued on

18.11.2024). Hence, there is no suppression of ongoing works as alleged by the petitioner. He further contended that, the scope of the writ jurisdiction is limited where the petitioner has to prove and plead that there is arbitrariness and malafideness on the part of the tender issuing authorities for considering the 5th respondent’s tender bid. In the present case, the tender issuing authority, after due scrutiny of all documents and considering the factual position, has rightly declared the 5th respondent as successful bidder. Therefore the writ petition is devoid of merits and liable to be dismissed.

5. Learned Assistant Government Pleader for Panchayat Raj Department submitted that, the authorities have strictly followed the terms and conditions of the tender notification and accordingly opened the technical and financial bid, as such there is no illegality or procedural irregularity in the processing of the tender. He further submitted that infact, the contract works assigned to the 5th respondent were already completed as such the cause in the writ petition no longer survives and the writ petition has become infructuous. 6

6. The learned counsel for the petitioner insisted to pass orders on merits though tender work was completed.

7. Perused the record and considered the submissions of the respective learned counsel.

8. It is not in dispute that the 3rd respondent issued Tender notice dated

18.11.2024 for “Operation and Maintenance(O&M) CPWS Scheme to Movva & 41 other habitations including power charges for the year 2024-25” with the estimated contract value of Rs.18,90,876/- wherein the 5th respondent herein was declared as successful bidder. The prime grievance raised by the petitioner is that, inspite of bringing to the notice of the 3rd respondent-Tender issuing authority on 11.12.2024 that the 5th respondent has furnished false affidavit hiding the fact that he has a history of dishonoring the commitments given by him pertaining to similar works, he was neither blacklisted nor disqualified from the tender process, which is in violation of terms and conditions of the tender notice (Clause 17 & 23.6 of the Vol-I Part-A). Whereas the 5th respondent defended that the previous work allotted to him was cancelled by the 3rd respondent prior to the evaluation and qualification of the tender in the technical bid, as such there is no necessity in mentioning the same while submitting documents for the present impugned tender.

9. Admittedly, the works under the impugned tender notice were already completed by the 5th respondent, as such there remains nothing for adjudication and the writ petition has become infructuous. As the petitioner 7 has insisted to pass orders on the merits of the case, this Court, solely with a view to ascertain the correctness of the submissions made by the learned counsel for the respondents that the previous work allotted to the 5th respondent was cancelled by the 3rd respondent prior to the evaluation and qualification of the tender in the technical bid, carefully perused the record wherein it shows that pursuant to the G.O.Ms.No.73 of PR & RD(RWS.I) Department dated 21.12.2024, the Superintending Engineer, RWS&S Circle, Vijayawada(3rd respondent herein) issued cancellation orders under note orders to the 5th respondent on 23.12.2024 terminating the agreement dated

01.02.2023 allotted to him. In the said circumstances, as rightly contended by the learned counsel for the 5th respondent, the 5th respondent need not disclose the same in the declaration.

10. It was further submitted that the petitioner was disqualified from the tender process and instead of questioning his disqualification; the petitioner has questioned the consideration of the 5th respondent’s tender by way of filing this writ petition that too without any valid and justifiable grounds.

11. The Hon’ble Apex Court in catena of cases has held that the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with the contracts involving technical issues as there is a requirement of the necessary expertise to 8 adjudicate upon such issues. The approach of the court should be not to find fault with magnifying glass in its hands, rather the court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that tender has been granted in a mala-fide manner, still the court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

12. It is further settled law that burden of proving malafides is on the person making allegations and burden is very heavy as has been held by the Apex court in E.P.Royappa Vs State of Tamil Nadu1. Moreover, in Union of India Vs Ashok Kumar 2 the Apex Court has held that seriousness of allegations of malafides demands proof of high order of credibility and the Courts should be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are grave and they are made against the holder of an office having high responsibility. It was further held that, he who seeks to invalidate or nullify any act or order