Andhra Pradesh High Court - Amravati
Kammila Krishna Prasad vs The Government Of Andhra Pradesh, on 23 August, 2021
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
WRIT PETITION No.19807 of 2020
ORDER :
The petitioner is challenging display of his name in Andhra Pradesh e-Procurement Portal in blacklist in respect of Tender No.JTO-2/12/2020- 21, dated 09.04.2020.
2. The petitioner is a class-III (Civil) Contractor and registered with the office of the Superintending Engineer, Irrigation Circle, Vijayawada. He was the successful bidder for the work 'O&M such as eradication and removal of weed growth on the eastern side canal and its branches under jurisdiction of Nidumolu Section, Pamarru for Kharif 2020-2021', for which e-procurement tender notice No. JTO-2/12/2020-21, dated 09.04.2020 was issued by the 4th respondent. Though the value of the work as per the estimate was Rs.11,26,394/-, the petitioner quoted Rs.6,38,778/-. It was accepted by the 4th respondent, who issued work order in his favour vide letter No.EE/KCD/DB/JTO.2/449 M, dated 01.05.2020. The petitioner also requested to attend the office of the 4th respondent with the following:
"1) A) Proof of payment of 1% paid through electronic payment at the time of filing bid.
B) Demand Draft towards balance EMD (2.5%-1%= 1.5%) on agreement value for an amount of Rs.9,582/- (Rupees nine thousand five hundred and eighty two only) in favour of Executive Engineer, Krishna Central Division, Vijayawada.
2) Non Judicial Stamp Paper worth Rs.100/-.
3) Demand Draft towards 'e' procurement corpus fund (0.04% on ECV) Rs.451/- (Rupees four hundred and fifty one only) in favour of Managing Director, Andhra Pradesh Technological Services Ltd., Vijayawada."
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3. By the same letter, the petitioner was directed to submit hard copies of uploaded and attached certificates/documents, copy of Demand Draft towards EMD etc., on or before 06.05.2020. In case of any variance or failure to comply with such direction, the petitioner was informed that he would be suspended from participating in the tenders of e- Procurement Platform for a period of three years as per G.O.Ms.No.174 of I & CAD (PW-Reforms) Department, dated 01.09.2008.
4. The petitioner claimed that the work order so issued on 01.05.2020 was served on him on 4th or 5th May, 2020 and due to covid- 19 lockdown and strict restrictions imposed for movement of public, he could not procure necessary documents and attend the office of the 4th respondent on 06.05.2020. The petitioner further claims that he was under the bona fide impression that due to covid lockdown, the 4th respondent would extend the time for compliance.
5. The petitioner further stated that the 4th respondent issued him a notice No.510 M, dated 30.05.2020 by registered post and it was served on him on 05.06.2020. He further alleged that this register letter was booked from Buckinghampet Head Post Office on 02.06.2020 at 11.31 hours with inscription on the other side of the postal cover as Lr.No.449M. By this notice, according to the petitioner, he was requested to attend the office 4th respondent immediately with required documents within two days from the date of its receipt and warning certain consequences in case of failure. In as much as holidays intervened on 06.06.2020 and 07.06.2020 he had time till 08.06.2020, even according to the petitioner. However, he stated that when he verified Andhra Pradesh e-Procurement Portal to note the status of his tender, to his surprise, he MVR,J CMA No.253 of 2010 3 found that his bid was shown as blacklisted tender. The petitioner further claimed that upon verification of his personal mail account, he saw that there was no other notice except the one sent by the 4th respondent on 30.05.2020 in respect of this tender work. Referring to accommodation made in respect of another contractor, who was then similarly placed namely, Sri G.Sridhar Gopala Krishna, the petitioner contended that keeping in blacklist with reference to this tender is improper and which was displayed on the e-procurement platform. This action, according to the petitioner, is totally uncalled for without giving any opportunity and therefore, he requested to set aside the same by issuing a writ of mandamus or an order of such nature against the respondents.
6. On behalf of the 4th respondent, a counter-affidavit is filed opposing this writ petition. The respondent did not dispute the petitioner being the successful tenderer for the work in question, notice issued to him to comply with the directions on two occasions as stated by him and also the consequences to follow in default to comply with such directions.
7. The 4th respondent specifically contended that the petitioner did not respond to the notice issued on 30.05.2020 vide letter No.510M and even otherwise, in e-procurement tender process, further steps are taken only on-line and that there is no need for serving notices manually to the contractor. On account of the conduct of the petitioner in failing to respond to the notices, in view of the exigency of the work, it was decided to cancel the work order forfeiting 1% EMD and it was decided to go for e-tendering.
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8. Referring to effect of Clause-16 of tender document and also G.O.Ms.No.174, dated 01.09.2008, the 4th respondent stated in his counter-affidavit that an extent of 30,000 acres ayacut is depending on eastern side channel and therefore, in order to safeguard the irrigation facilities, it was decided to cancel the tender and to call fresh tenders once again, in view of urgency to eradicate the weed growth by spraying chemicals, before water is released for Kharif season i.e. in last week of June, 2020 or otherwise it would cause severe obstruction to the flow of water in the canal. It is also stated in this counter-affidavit that upon cancellation of the tender, the process of re-tendering was undertaken on 05.06.2020 and the work was awarded to the lowest bidder Sri Kilarapu Srinivasarao. Thus stating, the 4th respondent requested to dismiss this writ petition.
9. Heard Smt. Santhi Sri, learned counsel, for Mr.Chalasani Ajay Kumar, learned counsel for the petitioner and learned Government Pleader for irrigation.
10. Now, the point for determination is-"Whether the process of placing the petitioner in blacklist in relation to subject tender in terms of Clause-16 of the tender schedule and G.O.Ms.No.174, dated 01.09.2018 is proper and such action was initiated upon keeping the petitioner on notice?
POINT:
11. The nature of the work under the subject tender is to facilitate farming community irrigating a total ayacut of 30,000 acres, to enable free flow of water through eastern side canal. This canal receives water MVR,J CMA No.253 of 2010 5 from Upper Pulleru Canal and runs upto Machilipatnam tail-end region. The growth of weed is heavy in this canal that would impede flow of water to a great extent. Therefore, removal of it during summer season, is imminent necessity or otherwise the tail end farmers would be drastically affected on account of deprivation of their rightful share of water for irrigation. The eradication of weed included spraying chemicals which should necessarily be undertaken before release of water through this canal.
12. The petitioner is not disputing the imperative necessity and urgency in this work. This work is expected to be carried out within nine (09) months.
13. Upon his own showing, the petitioner was served a notice initially on 01.05.2020 requiring furnishing certain documents and pointing out the consequences in case of default to follow these directions as per G.O.Ms.No.174, dated 01.09.2018. Admittedly, the petitioner did not comply with such directions. The reason assigned by him of impact of lockdown then in force due to covid-19 infection, cannot as such be brushed aside. Judicial notice of this fact should necessarily be taken.
14. In spite of his inability to meet such requirement, the 4th respondent issued another notice on 30.05.2020 to the petitioner requiring him to comply the directions therein. This notice also referred to the earlier notice dated 01.05.2020.
15. The petitioner stated in his affidavit as if to explain its service on him on 05.06.2020 and that, because of the intervening holidays on MVR,J CMA No.253 of 2010 6 Saturday and Sunday, there was no possibility for him to attend the office of the 4th respondent till 08.06.2020.
16. Thus, he had 35 days in between to comply with the directions. The petitioner claimed that he was blacklisted on e-Procurement Portal, which he observed when he opened it on 05.06.2020 at about 6.12 p.m.
17. Admittedly, this entire tender process and later events are electronically controlled and in a process of on-line system. The 4th respondent has explained in his counter affidavit that once default is found on the part of any contractor in meeting the requirements, the implementation part of either clause-16 of the tender document or G.O.Ms.No.174 dated 01.09.2008, would automatically appear on-line. It appears true, since the verification of the petitioner after 6.00 p.m. on 05.06.2020 reflected this situation.
18. The effect of default clause in the event of failure to follow directions in the concerned notices dated 01.05.2020 and 30.06.2020 is admitted.
19. Clause-16 of tender document is as under:-
"The successful tenderer has to sign the agreement within a period of 14 days from the date of receipt of communication oif acceptance of his tender. On failure to do so, the concerned agreement concluding authority will suspend the business of the erring tenderer for a minimum period of one year duly forfeiting the EMD. The agreement concluding authority will intimate to M/s. APTS Ltd., Vijayawada to disable the digital key issued to the bidder for a period of one year from the date of intimation."
20. G.O.Ms.No.174, dated 01.09.2008, similarly contains a clause of this nature and it is as follows:
MVR,J CMA No.253 of 2010 7 "If any successful bidder fails to submit the original Hard Copies of uploaded certificates/documents, DD/BG towards EMD within the stipulated time or if any variation is noticed between the uploaded documents and the hard copies submitted by the bidder, the successful bidder will be suspended from participating in the tenders on e- Procurement platform for a period of 3 years. The e-Procurement system would deactivate the user ID of such defaulting successful bidder based on the trigger/recommendation by the Tender Inviting Authority in the system."
21. But the petitioner is pointing out an instance of similarly placed contractor, namely Sri G.Sridhar Gopala Krishna, where he was not placed in blacklist in respect of another tender, though he too defaulted like the petitioner to follow the instructions of the office of the 4th respondent.
22. The 4th respondent waited till 30.05.2020 for the response of the petitioner, though initially notice was issued on 01.05.2020 to comply with the requirement, following acceptance of the tender of the petitioner for the subject work. It was not as though the 4th respondent abruptly closed the options for the petitioner. Thus, the initial stand, which the notice dated 01.05.2020 reflected was relaxed though not the requirement was waived and another notice was issued on 30.05.2020. The petitioner could have availed on-line process for this purpose to comply except in case of submission of hard copies of certain documents. Possibly, he would have requested the 4th respondent to permit time to meet such requirements, upon sending a mail setting out his difficulty on account of covid pandemic.
23. The learned counsel for the petitioner while referring to these facts and circumstances relied on an order in W.P.No.9777 of 2020 covering an instance of clause-I (Civil) contractor, who was blacklisted during the same period when the petitioner was also subjected to such treatment. One of the learned Judges of this court, in given facts and MVR,J CMA No.253 of 2010 8 circumstances, observed that the consequences to follow upon blacklisting are quite serious and penal in nature and therefore, it required issuance of prior notice as well as an adequate opportunity to explain. Upon elaborate discussion of the material the learned Judge came to such conclusion.
24. Undoubtedly, there has been inaction on the part of the petitioner. Though he claimed in his affidavit filed in support of this writ petition that he could receive letter dated 30.05.2020 only on 05.06.2020, he could not produce the postal envelop served on him. Only a copy of the acknowledgement is sought to be placed by him on record, which did not indicate and support the stand of the petitioner. Curiously, the petitioner stated that the postal cover served on him was lost. When it is of such a serious issue, it is rather difficult to believe this version of the petitioner that he misplaced this postal cover served on him.
25. Though the effect of placing him in blacklist is for a certain period and is not permanent, ominous consequences it brings to bear upon the petitioner should be a guiding factor now. In usual course, having regard to the nature of the set up observed from this on-line process, it is not necessary that a prior notice be given calling for explanation of the defaulting contractor. Particularly, having regard to the emergency nature of the subject work, the respondents cannot be expected to follow such procedure.
26. In the light of the present situation, affected by covid-19 virus, due allowance should have been made before subjecting the petitioner to such consequence of his inaction. Neither at once, the petitioner could MVR,J CMA No.253 of 2010 9 have been placed with reference to subject tender in blacklist nor could it have been displayed in e-Procurement Portal.
27. As seen from the counter-affidavit of the 4th respondent, the work has already been assigned to another contractor. Reason assigned for this purpose cannot be found fault with as such, having regard to the nature of the subject work. In these circumstances, if the effect of blacklisting is taken away, that would ultimately enable the petitioner to take part in the process of submitting tenders for other works, it would be in the interests of justice.
28. Therefore, this writ petition is disposed of directing the 4th respondent to remove or delete the name of the petitioner from being displayed in Andhra Pradesh e-Procurement Portal in respect of the Tender No.JTO-2/12/2020-21, dated 09.04.2020 in blacklist. No costs.
As a sequel, pending miscellaneous petitions, stand closed. Interim Orders, if any, stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt:23.08.2021 RR MVR,J CMA No.253 of 2010 10 HON'BLE SRI JUSTICE M.VENKATA RAMANA WRIT PETITION No.19807 of 2020 Dt:23.08.2021 RR