Andhra HC (Pre-Telangana)
Adilakshmi Construction, Kakinada vs Chief Engineer (R&B), Buildings, Hyd. ... on 13 July, 1999
Equivalent citations: 1999(4)ALD480, AIR 1999 ANDHRA PRADESH 437, (1999) 4 ANDHLD 480
JUDGMENT
1. Heard the learned Counsel for the petitioner and the learned Government Pleader for the Transport, Roads and Buildings.
2. This writ petition is filed to declare the 2nd item in the letter Roc. No.6232/ AEE4/96, dated 20-6-1998 of the 2nd respondent as illegal and to direct the respondents to consider the tender submitted by the petitioner.
3. The 2nd item of the said letter reads as under :
"You are also requested to immediately furnish the experience certificate duly countersigned by next higher authority to the certificate issuing authority."
4. The petitioner is a Class-II Contractor registered on 31-1-1998 and entitling ro tender for the civil work above Rs 40.00 lakhs and upto Rs.1.00 crore. The 2nd respondent issued the tender notification in tender notice No.7/HD/98-99 dated 20-5-1998 calling for the tenders from the Class-I Civil (Buildings) contractors or Class-II Civil (Buildings) Contractors registered under the relevant Government Orders, who are eligible, to apply for the tender schedules. The tenders were called for the work of "construction of quarters for sub-Judges and Munsif Magistrates (10 Nos.) at Kakinada (2nd call)". The approximate value of the work is Rs.46.60 lakhs. The period of completion of work is nine months. The dates for receipt of application for tender schedules and issue of tender schedules are 20-5-1998 to 11-6-1998 and the dale of opening of the tenders is 19-6-1998. The condition No.3 of the tender conditions reads as under:
"The contractors should produce evidence of their :
(1) Registration (2) Required experience Certificate as per special conditions along with their application for tender Schedules, tender Schedules will not be issued, if the above mentioned proof of evidence is not produced in the required manner along with the application"
5. Clause 14 of the tender notice deals with the Special conditions and special conditions 14(c) reads as under :
"14. Special Conditions :
(a) ..................
(b) ..................
(c) ..................
(d) ..................
(e) The contractors having good experience in similar type of works and an annual turnover of not less than Rs.20.00 lakhs for group of works in anyone year of the preceding five years and out of which turnover on a single work should not be less than Rs.10.00 lakhs (start to end) only are eligible to tender for the above work. The experience and turnover certified by the Executive Engineer and countersigned by the Superintending Engineer must be produced along with application for issue of Tender Schedule."
6. Pursuant to the application of the petitioner it appears that though the petitioner did not produce experience and turnover certificates in respect of execution of similar types of works such as the construction of quarters, tender schedules have been issued on 9-6-1998 and the petitioner submitted the tender within the time stipulated i.e., by 19-6-1998. The petitioner states that to its utter surprise, the 2nd respondent issued the impugned letter in which the petitioner was requested to attend the office of the Superintending Engineer before 22-6-1998 for negotiations and also requested to furnish the experience certificate duly countersigned by the next higher authority to the certificate issuing authority. Questioning the said letter, this writ petition is filed alleging that the 2nd item of the said letter dated 20-6-1998 in asking the petitioner to furnish the experience certificate is illegal and the question of furnishing the experience certificate does not arise at all once the tender schedule is issued to the petitioner. The petitioner further submits that the petitioner is not bound to submit any experience certificate, however, it stated that as an abundant caution, it submitted experience certificate in construction activity.
7. Admittedly, the petitioner did not file any experience certificate of having executed similar type of works i.e., construction of quarters and the annual turnover not less than Rs.20.00 lakhs in a year, and therefore, the petitioner is not eligible even to receive the tender schedule let alone the award of the work. When the petitioner is not entitled to receive the tender schedule itself, the question of awarding the contract to a person who did not fulfill the special conditions, does not arise. Only such of those contractors, who are having experience in similar type of works of construction of quarters having a turnover of not less than 20.00 lakhs for group of works in any one year of the preceding five years and out of which turnover on a single work should be not less than Rs. 10.00 lakhs are alone are entitled to tender for the works, and therefore, the petitioner does not have experience of having executed similar type of works and has not fulfilled the special conditions, the letter issued by the 2nd respondent in directing the petitioner requiring him to furnish the experience certificate duly countersigned by the next higher authority to the certificate issuing authority is valid, legal and fully justified and cannot find fault with the said letter.
8. Admittedly, the pelitioner has not filed any experience certificate but some experience certificate was filed relating to the partner of the petitioner-firm namely Y. Shiv Shankar. The experience certificate filed by Sri Y. Shiv Shankar, partner of the petitioner-firm relating to the improvement of the road but does not relate to the construction of the similar type of the construction of the quarters in question and that the certificate is also not in the prescribed manner and it is not signed by the Executive Engineer and counter-singed by the Superintending Engineer. As the said experience certificate do not relate to the construction of the quarters but it relates to the construction of bridge, and therefore, admittedly, petitioner is not having the experience of constructing similar type of works.
9. It is argued on behalf of the respondents that though the petitioner is the lowest tenderer, its tender has not been accepted as the experience certificate produced by the petitioner is issued by a non-governmental organisation. It is curious to note that the none of the respondents or the Engineer-in-Chief, R&B, have noticed the defect in the experience certificate produced by the petitioner and the respondents have only stated that the experience certificate produced by the petitioner was issued by the non-Governmental organisation but the respondents were failed to scrutinise the experience certificate atleast with their naked eyes. A mere glance at the experience certificate produced by the petitioner clearly reveals that it relates to the construction of the bridges but not the quarters, and therefore, considering the said experience does not arise at all as the petitioner do not fulfill the special conditions.
10. It is stated that the next lowest tenderer Sri G. Veer Raju, who has fulfilled the special conditions and having the experience of executing the similar type of construction of quarters and the said Sri G Veer Raju agreed for executing the said work for the same value that was quoted by the petitioner, and therefore, his bid was recommended for acceptance and the Engineer-in-chief vide Memo No.TA7/ AEE8/CTS/2015/97 dated 22-9-1998 has communicated the acceptance of the bid of Sri G. Veer Raju and the said orders were received in the office of the 2nd respondent. Meanwhile, a telegram was received from the High Court on 28-9-1998 staying the finalisation of the tenders.
11. This Court granted interim stay not to finalise the tenders, called for vide tender notice dated 20-5-1998 by order dated 25-9-1998 in WP MP No.33095 of 1998.
This Court by order dated 24-12-1998 in WP MP No.33095 of 1998 and WV MP No.4093 of 1998, prima facie felt that the petitioner was not eligible in accordance with the tender notice, and therefore, the order of interim stay granted by this Court on 25-9-1998 is vacated. However, it is made clear that allotment of tenders made shall be subject to the outcome of this writ petition. Questioning the said order dated 24-12-1998, the petitioner filed Writ Appeal No.41/99 and a Division Bench of this Court without going into the merits of the case disposed of the writ appeal directing the office to post the writ petition for final hearing subject to part heard on 25-1-1999 and ordered status quo in the meanwhile. The respondents state that after vacating the stay by this Court on 24-12-1998, an agreement was entered into with Sri G. Veer Raju on 6-01-1999 but pursuant to the orders in the Writ Appeal No.41/99 dated 12-1-1999 to maintain status quo, the execution of the work has not taken up.
12. The contention of the learned Counsel for the petitioner is that once the petitioner has been registered as Class-11 contractor entitling the firm to execute the value of work upto Rs.1.00 crore, it shall be automatically permitted to execute any type of work upto a value of Rs.1.00 crore. Registration of the classes of the contract is a minimum qualification entitling them to get the tender schedules upto a value prescribed in the registration. Merely because a contractor is qualified to get the tender schedules, he will not get any right automatically to execute a particular type of work unless he possess the required experience. To get the award of the work, one should also fulfill the special conditions as imposed in the tender notification. Thus, the minimum qualification as well as the special qualifications in respect of the special conditions must be fulfilled for consideration of the tender. More so, the petitioner has not questioned the prescription of the special conditions as notified in the tender notification. When the petitioner do not have any experience of executing the similar type of work within the prescribed time, I am unable to agree with the contention of the learned Counsel for the petitioner and the petitioner is not entitled as a matter of right tc get the award of the contract when it did not fulfill the special conditions prescribed in the tender notice.
13. As already stated above, neither the petitioner nor its partner do not have the experience of fulfilling the special conditions, and therefore, the rejection of the tender by the respondents is valid and legal and the respondents have rightly accepted the tender of the second lowest tender after negotiating on par with the rates quoted by the petitioner. In view of the aforesaid factual position, the judgments cited by the learned Counsel for the petitioner as well as the respondents have no relevance to the facts of the present case. In view of the foregoing reasons, I do not find any merits in this writ petition as there is no arbitrary or illegal action on the part of the respondents or any irrelevant considerations and the writ petition is liable to be dismissed.
14. Accordingly, the writ petition is dismissed with costs.