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VPR Constructions v/s Professor Jayashanker Telangana State Agricultural University

    W.P.No.17882 of 2020

    Decided On, 20 April 2021

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE ABHINAND KUMAR SHAVILI

    For the Petitioner: ------ For the Respondent: ------



Judgment Text

This Writ Petition is filed seeking a Writ of Mandamus declaring the impugned action of the 2nd respondent in declaring the 3rd respondent as successful bidder on the e-procurement portal dt.05-10-2020 in pursuance to the bid notice vide NIT No. 3/PJTSAU/E0/TA/2020-21 dt.22-07-2020 for construction of Agricultural College Building at Warangal, though the petitioner is entitled to be declared as successful bidder for having more bid capacity than the 3rd respondent as per the bids quoted by them, being equal, as illegal, arbitrary and violative of Articles 14, 19 (1) (g) and 21 of the Constitution of India and consequently direct the 2nd respondent to award the aforesaid contract work to the petitioner by declaring as successful bidder.

2. Heard Sri K.Rathanga Pani Reddy, learned counsel for the petitioner, Sri B.Thimothi, learned Standing Counsel for the respondent Nos.1 and 2-University and Sri Voosa Raghu, learned counsel for the 3rd respondent.

3. It has been contended by the petitioner that it is a proprietary concern and the petitioner is into the construction field. The petitioner has further contended that the 1st respondent-university had issued tenders Notification for awarding construction of Agricultural College Building at Warangal on 22-07-2020. Since the petitioner is into the construction business, the petitioner responded to the tender notification and submitted the tender document. The petitioner has further contended that the approximate estimate contract value of the entire work was Rs.17,80,64,766/-. The technical bids were to be opened on 10-08-2020 and the price bid was to be opened on 12-08-2020 at 11.30 am. The petitioner has further contended that as per the terms and conditions of the tender, if the parties have quoted the same price, then the persons who have quoted higher bid capacity would be considered for awarding the contract. The petitioner has further contended that the petitioner as well as 3rd respondent have quoted the same price and in terms of the conditions of the tender document, person who has quoted higher bid capacity will be awarded the work contract.

4. Learned counsel for the petitioner has further contended that the bid capacity is to be calculated in the following manner:

"f. Bid Capacity:

The tenderer who meets the above qualification criteria and whose available bid capacity is more than the estimated contract value will be qualified for opening of price bid. The available bid capacity will be calculated as under: Available Bid Capacity : 2AN-B.

Where, A = Maximum value of civil engineering works executed in its name in any one financial year during the last five financial years (updated to current Price level) taking into account the works completed as well as works in progress.

N = Number of years prescribed for completion of the work for which Tenders are invited )months / 18).

B = Updated value (at current Price level), of all existing Commitments i.e. on going works, works likely to be awarded to be executed during the next 18 months. (Period of completion for which Tenders are invited).

No relaxation will be given to any of the qualification criteria. Note:

a) Sub-contractor 's experience, in his name will be taken into account in determining the Tenderer 's compliance to the qualification criteria, if it is as per G.O.Ms.No.8 dt.08-01-2003.

b) The experience gained in a registered JV firm to the extent of the tenderer 's share shall be considered if the tenderer happens to be the lead partner, for similar works criteria also a. Even though the tenderers meet the above qualifying criteria, they are liable to be disqualified / debarred / suspended / blacklisted if they have furnished false / fabricated particulars in the forms, statements and / annexures submitted in proof of the qualification requirements and/or not turned up for entering into agreement, when called upon record of poor progress such as abandoning the work, not properly completing the contract, inordinate delays in completion, litigation history or financial failures etc. and/or participated in the previous bidding for the same work and had quoted unreasonably high tender percentage and even while execution of the work, if found that the work was awarded to the contractor based on false/fake certificates of experience, the contractor will be blacklisted and work will be taken over invoking clause 61 of PS to APSS.

"b. " to "d. " ... ... ... ... .... "

5. Learned counsel for the petitioner has further contended that the perusal of the above Clause which deals with 'Bid Capacity ' would make it abundantly clear that the updated value of all the existing commitments i.e. on going works, works likely to be awarded to be executed during next 18 months can be also to be taken into account for the purpose of calculating Bid Capacity. The initial bid capacity of the petitioner as Rs.139,87,62,801/- and instead of opening the technical bids on 10-08-2020 and the price bid on 12-08-2020, the 1st respondent-university had opened the bids on 09-09-2020 and reduced the bid capacity of the petitioner to Rs.112,91,60,433/- unilaterally without giving any opportunity to the petitioner.

6. Learned counsel for the petitioner has further contended that under no circumstances, the 1st respondent-university can reduce the bid capacity of the petitioner and by reducing the bid capacity of the petitioner, the 1st respondent-university has awarded the contract in favour of the 3rd respondent whose bid capacity was Rs.126,41,06,751/-. He has further contended that initially the 1st respondent-university has valued the bid capacity of the petitioner as Rs.139,87,62,801/- and that technical bid and price bid were opened as stipulated in the tender schedule and that the work ought to have been awarded to the petitioner, but the 1st respondent-university had changed the bid capacity of the petitioner to that of Rs.112,91,60,433/- and awarded the work in favour of the 3rd respondent. Therefore, the learned counsel for the petitioner has contended that the action of the 1st respondent-university in altering the bid capacity of the petitioner by reducing it to Rs.112,91,60,433/- from Rs.139,87,62,801/- is an arbitrary exercise and the same has been done in order to favour the 3rd respondent.

7. Learned counsel for the petitioner has further contended that the petitioner is entitled to be awarded the contract. As per the terms and conditions of the tender, if the price quoted by the petitioner as well as the 3rd respondent is one and the same, then the work has to be awarded in favour of the person who has quoted more bid capacity.

Admittedly, in the instant case, the petitioner has quoted more bid capacity than the 3rd respondent and the 1st respondent-university has altered the bid capacity of the petitioner that too after the due date of opening of technical capacity as well as opening of price bid which is not permissible.

8. Per contra, learned Standing Counsel appearing for the 1st respondent-university has contended that the original bid capacity of the petitioner was no doubt Rs.139,87,62,801/- but some complaints were received in respect of the petitioner 's bid capacity and the 1st respondent-university has sought clarification from the Superintendent Engineer, Telangana State, TSEWIDC, Hyderabad and in response to the 1st respondent-university query, the Superintendent Engineer, TSEWIDC, had informed that the price bid for the two following works in their department were opened on 13-08-2020 and accordingly taking the said information from the Superintendent Engineer only the 1st respondent-university had reduced the bid capacity of the petitioner. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.

9. The learned counsel for the 3rd respondent had contended that since the bid capacity of the petitioner was not properly calculated initially by the 1st respondent-university and on getting clarification from the Superintendent Engineer i.e. TSEWIDC, the bid capacity was rightly taken into account and the 1st respondentuniversity has rightly rejected the case of the petitioner and awarded the work in favour of the 3rd respondent. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.

10. This Court, having regard to the rival submissions made by the counsel for the parties, is of the considered view that the 1st respondent-university has filed a counter and at page-6 of the material papers annexed to the counter, the initial bid capacity of the petitioner was Rs.139,87,62,801/- was taken into account and subsequently the same was reduced to Rs.112,91,60,433/-, the said reduction of the bid capacity of the petitioner is not in accordance with the terms and conditions of the tenders. The 1st respondent-university ought not to have reduced the bid capacity of the petitioner. The technical bid were to be opened on 10-08-2020 and the price bid were to be reopened on 12-08-2020. The actual values as on the date of opening of technical bid as well as price bid have been taken into account. If the petitioner has not properly submitted the bid capacity, then on that ground, the 1st respondent-university can reject the case of the petitioner but the 1st respondent-university cannot reduce the bid capacity of the petitioner. Having accepted the original bid capac

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ity of the petitioner as Rs.139,87,62,801/-, the 1st respondent-university could not have reduced the bid capacity of the petitioner. If there was some erroneous calculation or mis-calculation, then on that ground, the 1st respondent-university can reject the case of the petitioner but the 1st respondent-university cannot reduce the bid capacity of the petitioner unilaterally that too behind the back of the petitioner. For these reasons, this Court is of the considered view that the 1st respondent-university could not have reduced the bid capacity of the petitioner from Rs.139,87,62,801/- to that of Rs.112,91,60,433/- 11. Therefore, the Writ Petition is allowed directing the 1st respondent-university to consider the case of the petitioner also while awarding the work by duly taking into account the initial bid capacity of the petitioner at the time of opening of the tenders i.e. technical bid on 10-08-2020 and price bid on 09-09-2020. No costs. 12. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
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