1. This writ petition is filed challenging e-tender, NIT No.109/MD/ APEWIDC/VJA/2020-21 dated 02.01.2021 for procurement of Purified Drinking Water Systems Type – IV(A) to the Government schools, as illegal and arbitrary.”
2. Heard Sri G.R. Sudhakar, learned counsel for the petitioner and Sri G.V.S. Kishore Kumar, learned standing counsel appearing for respondents 2 to 5 and with the consent of both the counsel, this writ petition is being disposed of at the stage of admission.
3. Case of the petitioner is that, it is a partnership firm, doing fabrication works of drinking water stainless steel tanks and compactor bins etc.; Government of Andhra Pradesh has decided to procure requisite drinking water systems Type –IV(A) through e-tendering from the eligible bidders for 15715 schools in first phase at an estimated cost of Rs.75.00 crores; pursuant thereto, the 2nd respondent has issued e-tender dated 02.01.2021 to be downloaded from E-Procurement portal from 09.01.2021 to 16.01.2021 and for the very same work, earlier, the respondents issued e-tender vide NIT No.39 dated 06.08.2020 for procurement of Purified Drinking Water Systems, Type-II; as petitioner’s samples were refused by the respondents in the earlier tender, he filed WP No.15590 of 2020, wherein, an interim direction was passed directing the respondents therein not to finalize the tender ; now the impugned tender has been issued for the very same work with certain changes to benefit a few tenderers; present tender is customized to benefit a few; number of schools is not changed, but the estimated cost has been reduced from Rs.93.60 crores to Rs.75 crores, the minimum turnover of the bidder is enhanced from Rs.10 crores to Rs.30.00 crores and the solvency has been enhanced from Rs.1 crore to Rs.7.50 crores; number of units required were 1450 and the value of the each unit is enhanced from Rs.1,80,000/- to Rs.5,17,242/-; petitioner satisfied all the conditions except with regard to minimum turnover of Rs.30 crores and solvency of Rs.7.50 crores; in the earlier tender, nearly six bidders participated but in the present tender only two bidders have participated in view of the changed conditions who are sister concern; in view of the change in design, there will be a loss to the government as the tender cost would go up to Rs.48,90,00,900/- for the units; petitioner made a representation through e-mail on 12.01.2021 requesting the authorities to reconsider the conditions imposed in the tender and to follow procedure in terms of G.O.Ms.No.94 dated 01.07.2003; financial bid is not yet opened and hence, he seeks to set aside the impugned e-tender dated 02.01.2021. Hence, the writ petition.
4. Counter-affidavit has been filed by the 2nd respondent stating inter-alia that the government decided to provide pure drinking water facilitate in all government schools in a phased manner and initiated the process of procurement of water purifiers of different categories based on the exigency and considering various technical, scientific and financial implications; accordingly impugned tender was called for, for procurement of 1450 purified drinking water systems (DWS) Type-IV (A); petitioner did not participate in the present tender and could not even disclose his eligibility to participate in the tender in the affidavit filed in support of the writ petition; the equipment sought to be procured under NIT No.39 dated 06.08.2020 i.e., the previous tender is totally different and distinct and with dissimilar delivery mechanism and both are meant to meet different situations; the present system for which tenders are called for, is much more efficient in serving the needs of schools where the strength is more than 500 students and the earlier system is designed to fulfill the needs of the schools which have less than 300 students strength; the space occupied by the earlier system is comparatively higher to that of the present system; latest compact system of DWS model is hand operated with 12 taps as against the 8 taps pedal press system, which was designed during the peak Covid-19 period; tender committee approved the tenders on 20.01.2021 and letter of award was also issued on the same day for supply of 749 units of Type IV(A) as against 1450 units; last date for submission of the bid is 16.01.2021 and the writ petition is filed on 19.01.2021; increase in the turnover limits and solvency requirements is only due to the previous experience faced by the Corporation where many bidders have failed to supply the required quantity within the time specified; reduction in estimate cost is due to lesser numbers of units with more output in compact single unit with 12 taps as against 8 taps of previous model; three bidders have participated in the tender and not two as stated by the petitioner; G.O.Ms.No.94 dated 01.07.2003 does not apply to the tender in issue, as the same is not restricting the discretion of the respondents and prays for dismissal of the writ petition.
5. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. Learned standing counsel appearing for respondents 2 to 5 relied upon the judgment of the Division Bench of this Court in ‘B. Sailesh Saxena vs. Union of India (2018(4) ALT 36)’, wherein the scope of judicial review of the qualifications, requirements in a tender notification was discussed.
6. The 2nd respondent has issued notice inviting tenders (NIT) vide NIT No.109 on 02.01.2021. According to which, the bid document can be downloaded from 09.01.2021 to 16.01.2021 and the bid has to be submitted before 4.00 p.m. on 16.01.2021. Technical bids were opened on 16.01.2021 and the declaration of eligibility is within seven days from the bid due date; display and finalization of samples is on or before 16.01.2021 and the declaration of financial bid and reverse tendering is within 14 days from bid due date and the letter of award is within 21 days from bid due date and the signing of agreement is within seven days of award of letter. The writ petition was filed on 19.01.2021 and according to the counter-affidavit, reverse tendering was completed on 19.01.2021 and the letter of award was also issued on 20.01.21. Petitioner earlier filed WP No.15590 of 2020 challenging the e-tender notification vide NIT No.39 dated 06.08.2020, which is issued for procurement of water purifiers Type-II. In the said case, the contention of the petitioner was that he was actually prevented from giving samples and that he was waiting outside the office of the respondents to present his simple and an interim direction was passed in the said case not to finalize the tenders. As seen from the copy of the interim order, which is filed along with the writ petition, the said tender was for procurement of purified drinking water system Type-II and the present tender is admittedly for purified drinking water system Type-IV(A). The main contention of the learned counsel for the petitioner is that the impugned tender is issued for the very same work by making certain changes to benefit few tenderers. But as seen from the counter-affidavit, it is categorically stated that the equipment now sought to be procured under the impugned tender is totally different and distinct and with dissimilar delivery mechanism and both are meant to meet different situations. It is also categorically stated that it is only the number of schools that were identified for the purpose of implementation of the scheme, but not the quantities or number of units that have to be procured.
7. Next submission of the learned counsel for the petitioner is that minimum turnover of the bidder is enhanced from Rs.10 crores to Rs.30 crores and the solvency has been enhanced from Rs.1 crore to Rs.7.50 crores, is tailor made to benefit a particular bidder. Except alleging that the same is tailor made, he could not demonstrate as to how the same can be construed as tailor made. Merely because the turnover limits and solvency limits are enhanced, it cannot be said that it is tailor made. Cost of each unit now is Rs.5,17,242 in view of change of design, where as previously it was Rs.1,80,000/-. The specifications which are filed and the copies of the photos clearly demonstrate that they are two different types of water purifiers.
8. The contention of the petitioner that the cost would go up in the impugned tender is also not correct, as the units that are going to be procured in both the tenders are of different types and capacity. According to the respondents, the units that are going to be procured through the impugned tender can cater to schools where strength is more than 500 and the ones in the earlier are cater to schools which have less than 300 strength. It is also stated that one new model is sufficient in place of three old models. No reply has been filed denying the averments in the counteraffidavit with regard to the specifications and capacity etc. of the two different water purifiers. Hence, the calculation made by the petitioner alleging that there would be a loss to the Government is not correct.
9. Learned counsel for the petitioner also relied upon G.O.Ms.No.94 Irrigation & CAD Department dated 01.07.2003, which deals with tender procedures. He relied upon para 10 of the Annexure I of the said G.O. which reads as follows:
“10. Qualification criteria:
A. To quality for award of the contract, each bidder in its name should have, during the last five years (specified financial years i.e. they should be immediately proceeding the financial year in which tenders are invited).
a. Satisfactorily completed as a prime contractor, similar works of value not less than Rs._/- @ (usually not less than 50% of estimated value of contract) in any one year.
b. Executed in any one year, the following minimum quantities of works:
- Cement concrete including RCC and PSC____Cum.
- Earth work in both excavation and Embankment ____Cum.
- (relevant principal items be indicated).
- (usually 50 per cent of the expected peak quantities of construction per year).
B. Each Bidder should further demonstrate:
a. Availability (either owned or leased or to be procured against mobilization advances) of the following Key and critical equipment for this work.”
10. As seen from the above it deals with minimum quantities of work that should have been done by the contractor for a ward of contract. It does not restrict the Government to prescribe higher quantities of turnover and solvency. Even if the solvency limits and turnover limits are reduced as requested by the petitioner, still the cost of a unit would be the same. It is also specifically stated in the counter-affidavit that due to the previous experience of not supplying within the time, turnover limits and solvency requirements were increased. Three tenderers participated in the bid and not two.
11. While dealing with the scope of judicial review, the Division Bench of this Court in B.Sailesh Saxena’s case (supra), held as follows:
“Before interfering in tenders or contractual matters, in the exercise of its power of judicial review, the court should pose to itself the following questions: (i) whether the process adopted or decision made by the authority is mala fide or is intended to favour some one or the process adopted or the decision made is so arbitrary and irrational that the court can say: ‘the decision is such that no responsible authority acting reasonably and in accordance with the relevant law could have reached’; and (ii) whether public interest is affected. If the answers are in the negative, there should be no interference in proceedings under Article 226 of the Constitution of India.”
12. In the present case, the writ petition is filed on the day when reverse action is to be completed, after technical stage and commercial stage, on 19.01.2021, even though the notice inviting tender is dated 02.01.2021. Except alleging that tender is intended to favour someone, merely on the ground that solvency criteria and the minimum turnover criteria are enhanced, petitioner could not demonstrate before this Court as to how it is tailor made. As held by the Division Bench of this Court in B Sailesh Saxena’s case (supra), although, a citizen has a fundamental right, under Article 19(1)(g), to carry on a trade or business, he does not have the fundamental right to insist that the government, or the individual concerned, has to enter into a contract with a particular person or to determine person or persons with whom he or it will deal. All that such a person can claim is that, in competing for the contract, he should not be unfairly treated and discriminated to the detriment of public interest.
13. While examining the scope of judicial review of the qualification requirements in tender notification, in the above case the Division Bench further held as follows:
“In examining the contention, urged on behalf of the appellants, regarding the validity of the qualification requirements stipulated in the tender notification, Courts must remain conscious that the scope of judicial review in such matters is extremely limited. In economic and commercial matters, decisions are taken by the government or its instrumentalities keeping in view several factors, and it is not possible for the Courts to consider competing claims and conflicting interests, and conclude which way the balance tilts. There are no ob
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jectives, justiciable or manageable standards to judge these issues nor can such questions be decided on a priori considerations. All that the participating bidders are entitled to is a fair, equal and non-discriminatory treatment. Commercial transactions, of a complex nature, involve balancing and weighing all relevant factors, and a final decision is taken on an overall view of the transaction. When the power of judicial review is invoked, in matters relating to inviting tenders or award of contracts, certain special features should be borne in mind. Inviting tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. The limited scope of judicial review by the High Court envisages examination of the question whether there is any material irregularity in the decision making process. If the decision, relating to the award of contract, is bona-fide and in public interest, Courts will not interfere even if a procedural aberration or prejudice to a tenderer is made out. The power of judicial review will not be invoked to protect private interest at the cost of public interest. 14. In the facts and circumstances and in the light of the observations in the judgment of the Division bench of this Court referred to above, this Court does not find any merit in the writ petition and is, accordingly dismissed. No order as to costs. Miscellaneous petitions, pending if any, in this writ petition, shall stand closed.