High Court · 2011

Order

1. This Writ Petition is filed seeking to issue a writ of mandamus declaring the action of the respondents 1 to 3 in accepting and evaluating price bid of the fourth respondent in respect of the work ‘widening to 2 lane and improvement of Yellandu-Gundala road from KM 0/0 to 51/6’ notified vide Tender Notice No.1/LWE/CE/PPP/ 2011, dated 17.6.2011, is in violation of Clause 18 of the Standard Bidding Document and Addendum- III and consequently direct the respondents 2 and 3 to reject the bid submitted by the fourth respondent.

2. The averments, in brief, of the affidavit filed in support of the Writ Petition may be stated as follows: The second respondent issued a tender notice dated

17.6.2011 inviting bids in respect of five works mentioned therein, and the issue involved herein relates to the work mentioned at serial no.2 thereof i.e. ‘widening to 2 lane and improvement of Yellandu-Gundala road from KM 0/0 to 51/6’. Along with the bid documents, in addition to the standard bid documents, the respondent supplied three Addendums, and as per Addendum-III , the bids shall be in hard bound form with proper index and page numbers and all the pages shall be signed/self-attested by the authorized representative of the bidder duly sealing and marking to be done while submitting the bids, so as to fulfil the condition of standard bidding document, and it is stated that if the condition is not complied the bids will be summarily rejected. The petitioner submitted its bid duly complying with all formalities, and the fourth respondent also submitted its bid. In all, 11 tenders were received in response to the tender notice, and three bidders were disqualified at the stage of Technical Bid itself as bids were not in bounded form. Price bids were opened on 9.9.2011 and at that time, it is noticed that the bid of the fourth respondent was submitted in loose sheets with a tag and was not hard bound in accordance with Addendum-III and the same was objected by the petitioner’s representative which was recorded in the minutes at the time of opening of the bids. The said Addendum was issued to overcome the allegations and complaints that the papers are being replaced in the bid document and the same is mandatory and no deviation therefrom is permissible. But, respondents 2 and 3, instead of rejecting the bid of respondent no.4, have not only accepted the same but also evaluated the same and

declared it as first lowest bidder. On coming to know about the same, petitioner sent letter dated 14.9.2011 to the second respondent, but there is no response thereto. Hence, the Writ Petition.

3. The third respondent filed counter affidavit denying the averments made in the writ affidavit and stating inter alia as follows: Detailed evaluations of the technical bids were taken up and Technical Evaluation Committee headed by the Chief Engineer (R&B) had examined the technical bids on 22.8.2011 and submitted to the Screening Committee headed by the Chief Engineer-MORT&H, New Delhi, and there were no complaints and representations on the above process. The fourth respondent submitted the tender bid in hard bound form as per Addendum-III and as per Clause 18. Price bids were opened on

9.9.2011 and the bid prices quoted by the bidders were read out. There were no complaints or representations on the above process at any state either by the disqualified bidders or the petitioner. Representative of the bidders had also attended the opening of the technical as well as price bids, but no objections were received. In the meeting of the Screening Committee, price bids submitted in stapled form by some of the bidders was discussed in detail and keeping in view of the fact that the price bids BOQ has been furnished on prescribed format and the bids are without any material deviation or reservations as stipulated in bidding document, bids were considered substantially responsive. Further, the financial bid documents were prepared by the department in stapled booklet form with page numbers signed by the third respondent in original, the question of hard binding of same again by bidder does not arise. Each and every page of the financial bids of all the bidders was signed by the members of the evaluation committee present at the time of opening of the price bids. The petitioner’s representative had not raised any objections during the opening of price bids even regarding proceedings taking place at the time of the openings. The fourth respondent had become L1 bidder with bid amount of Rs.72,35,14,546.49 ps. All the issues raised by the petitioner were already discussed in detail during Evaluation Committee Meetings and Screening Committee Meetings, and representative who attended the openings had never raised any objection during the above process. Hence, it is prayed to dismiss the Writ Petition.

4. The fourth respondent filed counter affidavit denying the averments made in the writ affidavit and stating inter alia as follows: This respondent submitted its technical bid in hard bound form, and the price bid was submitted as a stapled booklet as was given to it. The technical bid is submitted in hard bound form to avoid any future allegation regarding interpolation of documents to be enclosed to the technical bid. However, price bid is required to be submitted to the Employer as it is without any annexures/documents after duly filling up rates in the bill of quantities, and it is duly paginated and signed by the Employer on all the pages and therefore there is no scope for any controversy later with regard to actual contents of it. The petitioner did not raise any objection with regard to submission of the price bid by this respondent in stapled booklet form. All were present at the time of opening of the price bids and soon after the opening, the Employer signed on all pages in the presence of other tenderers. So, submission of price bid in the form of stapled booklet and not in bound form, neither leads to any scope for manipulation nor resulted in any prejudice to either employer’s interest or to the interest of co-tenderers. Insistence of compliance to Addendum-III to Clause 18 is not mandatory, in the case of a price bid and the Employer has the discretion to waive the same by treating it as a procedural aberration if the bid is otherwise in order and serves public interest. Hence, the Writ Petition is liable to be dismissed.

5. Learned counsel for the petitioner contended that in violation of the tender notice conditions, bid of the fourth respondent was accepted; that, admittedly, the fourth respondent submitted the price bid in a stapled booklet form as against the required condition of hard bound form; that, as the price bid submitted by the fourth respondent was submitted in loose sheets with a tag and was not hard bound, the bid has to be rejected, and so, there is arbitrary and unreasonable action on the part of the official respondents in accepting the price bid of the fourth respondent.

6. On the other hand, the learned Government Pleader for Roads & Buildings appearing for the respondents 1 to 3 contended that the price bid of the fourth respondent is in prescribed format and as there are no material deviations as stipulated in the bid documents, the Evaluation Committee accepted the price bid of the fourth respondent and this aspect of the case has been completely taken into consideration by the Evaluation Committee and therefore are no grounds to interfere with the same.

7. The learned counsel appearing for the fourth respondent contended that the fourth respondent submitted the price bid in stapled booklet form as was given by the official respondents; that, the price bid is duly paginated and signed by the Employer in all the pages and the petitioner did not raise any objection with regard to submission of price bid in stapled booklet form; that in pursuance of the agreement, fourth respondent has commenced the work and incurred huge expenditure for the purpose of execution of works, and hence, he prayed to dismiss the Writ Petition.

8. The short point that falls for consideration in this Writ Petition is ‘whether the bid documents submitted by all the tenderers are in accordance with tender conditions and whether the price bid document submitted by the fourth respondent which is admittedly in stapled booklet form is a proper compliance as per the tender requirements ?

9. Issuance of Tender Notice dated 17.06.2011 inviting bids in respect of works, including ‘widening to 2 lane and improvement of Yellandu-Gundala road from KM 0/0 to 51/6’, is not in dispute. In pursuance of the notice for invitation of tenders, in addition to the Standard Bidding Documents, the respondents supplied three Addendums. It is also not in dispute that as per the Addendum-III, bids shall be in the hard bound form with proper index and page numbers and all pages shall be signed/self-attested by the authorized representative of the bidder duly sealing and marking to be done while submitting the bids. It is also not in dispute that there are two important stages in evaluation of the bidding process. The first stage is evaluation of the technical bid. It is not in dispute before this Court that the fourth respondent submitted the technical bid in hard bound format. As per the technical bid, the tenderer has to fill up several forms and annexures as required in the bid and also submit various documents viz. financial credentials, work experience certificate, balance sheet, list of equipment owned by it. The object of the hard binding of the bid document relating to technical bid is to avoid replacing of any important papers at any time and also to avoid any future litigation. At the second stage i.e. price bid, there is no need to append any documents to the price bid. What all the bidder has to do is to fill up the columns with rates. It is also not in dispute that the price bid given by the tenderer is to be duly paginated and has to be signed by the Employer on all the pages, so that there will not be any scope for any controversy later stage with regard to the price quoted by the tenderer.

10. It is not in dispute that the tenders submitted by the tenderers in pursuance of the aforesaid Tender Notice were opened in the presence of all the persons concerned. They were in the sealed covers. Seals of the price bids were opened in the presence of all the tenderers or their representatives. Though it is stated that representative of the petitioner raised objection with regard to the price bid submitted by the fourth respondent in stapled form, but not in hard bound format, the respondents contended that no such objection was taken by the petitioner at the time of opening of the sealed covers relating to the price bid. According to the case of the fourth respondent, the price bid document was submitted by the Department in a stapled form and he accordingly filled the columns by quoting the price and that the representative of the fourth respondent has signed on every page of the price bid document. It is not the case of the petitioner that the officials manipulated or meddled with the price quoted by the fourth respondent in the price bid or the price bid was not signed by the authorized representative of the fourth respondent.

11. Addendum-III to the Tender Notice deals with ‘submission of bids in Hard Bound form (clause 18 page 16 of Standard Bid Document), which reads as follows: “The bids in hard bound form with proper index and page numbers & all pages shall be signed/self-attested by the authorized representative of the bidder duly sealing and marking to be done while submitting the bids, so as to fulfil the condition of the Standard Bidding Document. If the condition is not complied, Bids will be summarily rejected.” The contention of the learned counsel for the petitioner is that the price bid submitted by the fourth respondent is not in hard bound format. According to the learned counsel, three bids submitted by the bidders were rejected at the stage of evaluation of the technical bid on the ground that the bids were not in hard bound format, and therefore, it is contended that as the price bid was not in hard bound format, it has to be rejected by the Evaluation Committee and therefore there is arbitrary action on the part of the official respondents.

12. With regard to the scope of judicial review in the matters relating to tenders, the learned counsel for the petitioner placed reliance on a decision in Sorath Builders v. Shrerejikrupa Buildcon Limited & another , wherein it is held thus: (para 27) [1] to be adhered to strictly, and the considered opinion “Following the aforesaid legal principles laid down by this Court, we are of respondent no. 1 was negligent and was not sincere in submitting his pre- qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Pre- qualification documents were received by the respondent no. 2 - University only after time schedule was over. The terms and conditions of the tender as held by the Supreme Court are required respondent no. 2 - University was justified in not opening the tender submitted by respondent no. 1 on 01.12.2008, which was late by three days. According to us no grievance could also be made by the respondent no. 1 as lapse was due to his own fault. The High Court proceeded to interfere with the entire process as if acting as an appellate authority over the decision of the University which was beyond the jurisdiction of the Court. The High Court was not justified in accepting the contentions of respondent no. 1 and thereby upsetting the entire process of inviting tenders by interfering with the terms and conditions of inviting the tenders and by "escheduling and directing the process of re-tendering, which would only cause further delay and would increase the burden on the exchequer of the University.” therefore, No doubt, it is clearly stated that the terms and conditions of the tender are required to be adhered to, strictly. But, it is a case where the pre-qualification documents have not been submitted within the stipulated date. Therefore, that decision has no application to the facts and circumstances of the case on hand.

13. The learned counsel for the petitioner also relied on the following decisions. (a) in Master Marine Services (P) Limited v. Metcafe & Hodgkinson (P) Ltd & another , wherein it is held thus: (para [2] 15) “The law relating to award of contract by State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd. and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretion- ' ary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere.” (b) in Narendra Kumar Maheshwari v. Union of India & others [3] wherein it is held thus: (para 69). “Shri Ganesh submitted that the CCI is duty bound to act in accordance with the guidelines which lay down the principles regulating the sanction of capital issues. This is especially so because the guidelines had been published. It was submitted that the investing public is, therefore, entitled to proceed on the basis that the CCI would act in conformity with the guidelines and would enforce them while sanctioning a particular capital issue. It was submitted that it is not permissible to deviate from the guidelines. In this connection, reliance was placed by him as well as by Shri Haksar, appearing for the petitioner in T. C. No. 1611/88, upon the observations of this Court in Ramanna Dayaram Shetty v. International Airport Authority, (1979) 3 SCR 1014: (AIR 1979 SC 1628), where this Court observed that it must be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licence or granting other forms of largess, the government could not act arbitrarily at its sweet will and, like a private individual, deal with any persons it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. We accept the position that the power of discretion of the government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc. must be confirmed and structured by rational, relevant and non-discriminatory standard or norm and if the government departed from such standard or norm in any particular case or cases, the action of the government would be liable to be struck down, unless it could be shown by the government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, irrelevant, unreasonable or discriminatory. Mr. Haksar drew our attention to the observations of this Court in the case of Motilal Padampat Sugar Mills v. State of Uttar Pradesh, (1979) 2 SCR 641 : (AIR 1979 SC 621), where this Court reiterated that claim of change of policy would not be sufficient to exonerate the government from the liability; the government would have to show what precisely was the changed policy and also its reason and justification so that the Court could judge for itself which way the public interest lay and what the equity of the case demanded. It was contended by Shri Haksar that there were departures from the guidelines and there was no indication as to why such departures had been made.” (c) in Air India Limited v. Cochin International Airport Ltd. & others [4] wherein it is held thus: (para 7). “The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R. D. Shetty v. International Airport Authority, (1979) 3 SCC 498 : (AIR 1979 SC 1628); Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568 : (AIR 1981 SC 844); Asstt. Collector, Central Excise v. Dunlop India Ltd., (1985) 1 SCC 260 : (AIR 1985 SC 330); Tata Cellular v. Union of India, (1994) 6 SCC 651 : (1994 AIR SCW 3344 : AIR 1996 SC 11); Ramniklal N. Bhutta v. State of Maharashtra, (1997) 1 SCC 134 : (1997 AIR SCW 1281 : AIR 1997 SC 1236) and Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 : (1999 AIR SCW 53 : AIR 1999 SC 393). The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, is corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, is corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public the Court should intervene.” interference, requires interest (d) in Raunaq International Ltd. v. I.V.R. Construction Ltd. & [5] others, wherein it is held thus: (para 22) “In Tata Cellular v. Union of India, (1994) 6 SCC 651 : trend points "Judicial quest (1994 AIR SCW 3344), this Court again examined the scope of judicial review in the case of a tender awarded by a public authority for carrying out certain work. This Court acknowledged that the principles of judicial review can apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of that power of judicial review. The Court also observed that the right to choose cannot be considered as an arbitrary power. Of course, if this power is exercised for any collateral purpose, the exercise of that power will be struck down. administrative matters has been to find the right balance between the administrative discretion to decide matters and the need to remedy any unfairness. Such an unfairness is set right by judicial review." After examining a number of authorities, the Court concluded as follows:- (1) The modern administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative or quasi-administrative sphere. However, the decision can be tested by the application of the "Wednesbury principle" of reasonableness and arbitrariness, not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” the decision should be restraint judicial (e) in W.B. State Electricity Board v. Patel Engineering Co. Ltd. & others [6] , wherein it is held thus: (para 27) “Exceptions to the above general principle of seeking relief in equity on the ground of mistake, as can be culled out from the same para, are : (1) Where the mistake might have been avoided by the exercise of ordinary care and diligence on the part of the bidder but where the offeree of the bid has or is deemed to have knowlege of the mistake, he cannot be permitted to take advantage of such a mistake. (2) Where the bidder on discovery of the mistake fails to act promptly in informing to the concerned authority and request for rectification, withdrawal or cancellation of bid on the ground of clerical mistake is not made before opening of all the bids, (3) Where the bidder fails to follow the rules and regulations set forth in the advertisement for bids as to the time when bidders may withdraw their offer; however where the mistake is discovered after opening of bids, the bidder may be permitted to withdraw the bid.” From the above decisions, it is clear that the State or instrumentality of State should not act arbitrarily or with a mala fid e intention. The acts of the official respondents must be reasonable. The purpose of giving instructions is to maintain uniformity to all the bidders who participated in the process of bidding. Relaxation of the conditions should not be given ordinarily. Therefore, there is no dispute about the fact that award of the bid to the highest bidder must be in accordance with the tender conditions.

14. On the other hand, learned counsel for the fourth respondent relied on the following decisions. (a) in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. & others [7] , wherein it is held thus: “(v) When a decision is taken by the appropriate authority that successful bidders had upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with.” (b) in Raunaq International Ltd. v. I.V.R. Construction Ltd (5 supra), it is held thus: (para 16) “It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work, can be legitimately paid in order to secure proper performance of the contract and good quality of work-which is as much in public interest as a low price. The Court should not substitute its own decision for the decision of an expert evaluation committee.” (c) in G.J. Fernandez v. State of Karnataka & others [8] , wherein it is held thus: “It is true that the relaxation of time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But, we are inclined to agree with the respondent's contention that while the rule in Ramana's case (AIR 1979 SC 1628) (supra) will be readily applied by Courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only competition. Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full immunity to gain consideration. If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits.” (d) in Jagdish Mandal v. State of Orissa & others, [9] wherein it is held thus: (para 22) “Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice or decision is ‘sound’. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentiality commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of judicial review, should post to itself the following questions. (i) whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary in a civil court. and irrational that the court can say: ‘the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached ? (ii) whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” No mala fides are attributed to the Evaluation Committee in respect of the price bid of the fourth respondent. ‘Arbitrariness’ means a conduct or act based alone upon one’s will and not upon any course of reasoning and exercise of judgment. A pre- disposition to decide for or against one party without proper regard to the true merits of the dispute is ‘bias’. Before a decision is invalidated, bias must be shown to have been present or where a reasonable person present would have a reasonable suspicion from the circumstances of the case, that bias might have infected the decision. There cannot be any dispute that every power, either statutory or under common law, must be exercised by authorities lawfully, reasonably and in good faith. If the power is exercised unlawfully, improperly, unreasonably or in bad faith, the exercise is bad and the action is illegal. ‘Mala fide’ may mean want of good faith, personal prejudice, grudge, ill-will or improper. It is not the case of the petitioner that the respondents 1 to 3 acted mala fidely so as to award the tender to the fourth respondent. There is no allegation in the writ affidavit attributing bad faith against respondents 1 to

15. It is not in dispute before this Court that the price bids have been opened in the office of the Chief Engineer (R&B), Public Private Partnership, Hyderabad on 9.9.2011 at 3.00 PM. Necessary instructions have been given to the qualified and non- qualified bidders about the date of opening of the price bids. The price bids quoted by the bidders were read out. Representative of the petitioner was also present at the time of opening of the technical bids as well as price bids and he has not raised any objection. After analysis of the price bids, the committee examined the price bids on 13.9.2011 and submitted the same to the Evaluation Committee headed by the Chief Engineer, MORT&H, New Delhi. The Screening Committee discussed in detail and keeping in view of the fact that the price bid has been furnished in prescribed format and bids are without any material deviations, the bids were considered substantially responsive. It is specifically stated by the Department that the financial bid documents were prepared by the Department in stapled form with page numbers signed by the third respondent in original and the question of hard binding of the same again by bidders does not arise. As the price bid documents were prepared and supplied to the tenderers in stapled booklet, the same procedure would be applicable to all the bidders. It is not the case of the petitioner that some other format was used by the fourth respondent. If the fourth respondent submitted the price bid document in his own format, then it can be said to be violative of the general bidding conditions. Further, one of the conditions in the notice dated 17.6.2011 inviting tenders is that the bidding documents may be purchased from the addressed mentioned in column no.7 therein. Therefore, as the price bid document has been given by the department itself, the same has been accepted by the department. There is no illegality in submitting the price bid document in the format given by the department.

16. No doubt, Addendum-III requires that the bids must be in the hard bound form with proper index and page numbers and pages shall be signed/self-attested by the authorized representative of the bidder duly sealing, and marking to be done while submitting the bids and if this condition is not complied with, the bids will be summarily rejected. The Addendum-III must have been incorporated in the General Bidding Documents with a view to avoid manipulation at the time of evaluating technical bids. A tenderer has to fulfil certain requisite conditions as per the tender notification and at the stage of evaluation of the technical bid, the conditions have to be implemented rigorously. Therefore, the Addendum should be applied strictly to the technical bid process. It is not in dispute before this Court that the tender submitted by the fourth respondent with regard to technical process, was in hard bound form. It is not the case of the petitioner that the price bid of the fourth respondent was accepted so as to do favour. At the time of opening price bids, the fourth respondent has become L1 bidder with Rs.72,35,14,546.49 ps, whereas the petitioner has become L2 bidder with bid amount of Rs.74,90,09,588.71 ps. There is a difference of around Rs.255.00 lakhs between the amounts quoted by the L1 and L2 bidders. As the fourth respondent was the lowest tenderer, the Tender Processing Committee rightly awarded the contract to the fourth respondent.

17. Copy of the minutes of the price bid opening has been furnished by the Department, which would clearly go to show that the price bids are opened on 9.9.2011 at 3.00 PM in the presence of tenderers/ authorized representatives. It would also go to show that the sealed price bids contained in original cover were taken from almirah in the presence of participants and the price bids of qualified tenderers were opened and the rates quoted by the tenderers, item-wise, were read. Modifications were also read out wherever the offer was made by the bidder. Authorised representative of the petitioner company by name D.D.R. Vittalacharyulu has also signed. He has not raised any objection with regard to the observations made by the Price Bidding Committee. Affidavit relating D.D.R.Vittalacharyulu has not been filed with regard manipulation, if any, of the price bid document.

18. No doubt, the price bid document submitted by the fourth respondent is not in hard bound form, but it is in stapled booklet form. But, it is the case of the fourth respondent that the stapled booklet form given by the Department has been used for quoting the rates. When there is no tampering of price bid document submitted by the fourth respondent, it can only be said that there is a slight variation with regard to submission of the price bid document by the fourth respondent. As there is no arbitrary or unreasonable action on the part of the official respondents in accepting the tender of the fourth respondent and the petitioner has not shown that the decision making process of the Evaluating Committee is arbitrary or unfair, interference by this Court is not called for. In the facts and circumstances of the case, the price bid submitted by the fourth respondent in stapled booklet form and not in the hard bound form as required under Addendum-III, does not amount to serious violation so as to cancel the tender of the fourth respondent. In the absence of any allegation of manipulation of price bid, the case of the petitioner cannot be accepted. The Writ Petition is devoid of merit and is liable to be dismissed.

19. The Writ Petition is, accordingly, dismissed. No costs. .12.2011 DRK ------------------- (K.C.Bhanu, J) THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 26628 OF 2011 .12.2011 THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 26628 OF 2011 DATED .12.2011 Between: KVR-VCPL (JV) rep. by its Lead Partner Mr. K.Venkatraju Engineers & Contractors …Petitioner And Government of Andhra Pradesh, rep. by its Secretary, Roads & Buildings Department, Secretariat, Hyderabad & others …Respondents *THE HON’BLE SRI JUSTICE K.C.BHANU +WRIT PETITION No. 26628 OF 2011 %09.12.2011 # KVR-VCPL (JV) rep. by its Lead Partner Mr. K.Venkatraju Engineers & Contractors ….Petitioner Vs. $ Government of Andhra Pradesh, rep. by its Secretary, Roads & Buildings Department, Secretariat, Hyderabad & others !Counsel for the Petitioner : Mr. B.Adinarayana Rao ….Respondents ^Counsel for the Respondents: G.P. for Roads & Buildings for R1 to R3 Sri S.Rajan, Advocate for R4. <Gist : >Head Note: ? Cases referred: 1. (2009) 11 Supreme Court Cases 9 2. (2005) 6 Supreme Court Cases 138 3. 1990 (Supp.) Supreme Court Cases 440 4. (2000) 2 Supreme Court Cases 617 5. (1999)1 Supreme Court Cases 492

6. (2001) 2 Supreme Court Cases 451 7. (2006) 11 Supreme Court Cases 548 8. (1990) 2 Supreme Court Cases 488 9. (2007) 14 Supreme Court Cases 517 [1] [2] [3] [4] [5] [6] [7] [8] [9] (2009) 11 Supreme Court Cases 9 (2005) 6 Supreme Court Cases 138 1990 (Supp.) Supreme Court Cases 440 (2000) 2 Supreme Court Cases 617 (1999)1 Supreme Court Cases 492 (2001) 2 Supreme Court Cases 451 (2006) 11 Supreme Court Cases 548 (1990) 2 Supreme Court Cases 488 (2007) 14 Supreme Court Cases 517