Andhra HC (Pre-Telangana)
R. Eswar Reddy Civil And Electrical ... vs Chief Engineer (Transmission), A.P. ... on 14 September, 1999
Equivalent citations: 1999(5)ALD582
Author: A.S. Bhate
Bench: A.S. Bhate
ORDER
1. Heard the learned Counsel for the parties. On 16-10-1998 a notification was issued by the respondent for calling Tenders under Andhra Pradesh Power Sector Reconstructuring Project funded by the World Bank loan. Tenders were Invited for erection of 132 KV lines at various places as per the notification. In pursuance of the said notification, the petitioner claims to have submitted his Tender against package No.WB/APSEB/TR/RS-22 lot No.4 for erection of 132 KV.DC line. It is contended that the petitioner fulfilled the necessary requirement under the Tender specification. His bid was for Rs.39,09,310/- (Rupees thirty nine lakhs nine thousand and ten only). The bids were opened on 26-12-1998 and it was found that the petitioner's bid was the lowest one. As the respondent could not complete formalities of allotment of work, the bidders were requested to extend the validity of their bids. This was done. The validity of the bids was extended by the petitioner upto 28-5-1999.
2. The petitioner apprehended that for some reasons there was an effort to allot the work, for which he had submitted his bid, to the second lowest bidder. The petitioner came to the Court on 28th April, 1999 for obtaining a direction that he being the lowest bidder and having fulfilled the required formalities, was alone entitled for allotment of the work in question and that the work should not be allotted to the second lowest bidder, ignoring the petitioner's case.
3. As at the time of filing of the writ petition there was no adverse orders against the petitioner, only a notice was issued to the respondent and interim orders sought by the petitioner were not granted but a direction was issued by this Court that the process may go on but it shall be subject to result of the writ petition.
4. The writ petition has now come up for admission. In the meantime the Tender of second lowest bidder was accepted. The said second lowest bidder has not been made party to the writ petition. This is presumably on the ground that the Court had directed that the process shall continue but shall be subject to the result of the writ petition.
5. The petitioner contends that as his Tender was for the lowest bid and as he had fulfilled qualifications and formalities, the respondent ought to have allotted the work to him and not to any other bidder.
6. The respondent's stand is that one qualifying requirement was experience of laying 132 KV line of 100 Rkm as stipulated in the bid specification clause 4.5A. The petitioner claims to have executed work at 26.9 Rkm. However, verification disclosed that he had not executed or erected so much work by way of experience. The record of respondent showed that the petitioner had laid only 93.539 Rkm and not as claimed by him. Further more, it was necessary that the work executed by the petitioner bidder towards qualifying condition should be in successful operation for a period of at least one year. The petitioner does not fulfil this qualification. The petitioner had himself submitted a letter to the respondent requesting relaxation of the minimum qualification. Thus it is shown that the petitioner was aware that he was not duly qualified.
7. The petitioner filed additional affidavit that non-consideration of 20.31 Rkm Singur-Jogipet line towards experience was improper. Though it was true that the said line was not valid and was not operational for one year, the situation arose due to the department not completing the various material for completion of the work till September, 1998. The petitioner was at no fault. Further, the petitioner was a partner of a Partnership firm in the name and style "M/s. Sri Rayalaseema Power Construction, Hyderabad." Thus the firm had carried out work of about 400 Rkm between 1978 to 1986. The experience of the petitioner in the said partnership firm also needs to be taken into consideration.
The petitioner claims that he had written a letter dated 26-12-1998 requesting that all this experience should be considered as per the law laid down by this Court.
8. Though normally it is expected that the lowest bidder shall be considered while awarding Tender by State or any instrumentality of the State, this does not mean that the tenderer has a vested right for claiming that if he is the lowest bidder, his Tender has to be accepted. In the instant case the first hurdle in the, claim of the petitioner that he alone should be considered is that though he claims to have certain experience as a partner in a previous firm, the said experience, for consideration in the instant case, cannot be tagged. This is because there is a specific condition vide 4.5 (A) in the Tender notification to the effect that to qualify for award of the contract each bidder in its name should satisfy not only stipulated financial, turnover but also execution of the minimum quantity of work, as prescribed in the said clause. (Underlined to give emphasis). The petitioner herein wants to tagg the experience which was acquired by him in his capacity of a partner in earlier partnership-firm which ceases to exist long back. As the condition of the notification is clear that the bidder must have fulfilled the qualification-condition in its own name, the qualification of experience gained earlier in some other firm, cannot be tagged.
9. The learned Counsel for the petitioner relied upon the decision in Avula Contractions Private Limited v. Senior Divisional Electrical Engineer, Traction Distribution, , for arguing that the experience for eligibility to submit tenders, the experience of the applicant as a partner of a firm at earlier point of time has to be treated as that of the firm which is the bidder at the impugned tender process. This proposition of law is applicable only when there is no such condition as is stipulated in the present notification which requires that the tenderer must have acquired experience in its own name. It is fairly well settled that the conditions in the Tender notifications have to be scrupulously applied and fulfilled. Where there is no specific condition in the Tender notification that the experience should be in the name of bidder itself, the ratio of Avula Contractions Private Limited v. Senior Divisional Electrical Engineer's case (supra) will undoubtedly apply.
10. Further more, the condition that the bidder must have completed the erection of necessary length and also that the said work should have been operational for a period of one year prior to submitting of the bid, is also in absolute terms. The contention of petitioner that he had completed the work, but it had not become operational due to the lapses of the respondent in not supplying the necessary material cannot in any way make the petitioner qualified. The fact remains that the work allegedly completed by the petitioner was not fully operational for one year prior to submission of the bid.
11. It will thus be seen that the petitioner was not qualified in the terms of the notification. Though the grounds for not acquiring the necessary experience or qualification may be valid, the fact remains that the necessary qualifications did not exist.
12. It is well known that right to choose from the bidders is right vesting with the authority calling the quotations. The only limitation is that the said right to choose cannot be exercised in arbitrary way. The said power if exercised in normal way, but not for collateral purpose, the exercise of the power cannot be questioned. To borrow words of the Supreme Court, employed in Tata Cellular v. Union of India, :
"The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention, the other covers the scope of the Court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision making process itself,"
In the instant case it can hardly be said that the decision of the respondent was for any collateral purpose. It is impossible to say from the material relied upon by the petitioner that the respondent's action was motivated by any mala fides. There is no material to allege any mala fides. Therefore, the decision making done by the respondent does not suffer from any infirmity as such. The petitioner's case was considered and a decision was taken by the authorities. Even if it is assumed that the decision suffered from some minor error, it was a bona fide decision in facts and circumstances of the case. I do not think that the petitioner has made out any case in his favour.
13. The writ petition is dismissed. No order as to costs.