Telangana High Court
Khaja Inam Ul Haq vs The State Of Telangana on 31 December, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.33672 OF 2024
ORDER:
Heard Mr. Deepesh Bahadur, learned counsel for the petitioner, learned Assistant Government Pleader for Municipal Administration and Urban Development appearing on behalf of respondent No.1 and Mr. G. Narender Reddy, learned Standing Counsel appearing for respondent Nos.2 and 3.
2. This writ petition is filed to declare the action of respondents in not following and implementing G.O.Ms.No.66, dated 20.04.2015 in its full letter and spirit and calling for tenders EP-68/CGM(E)/TC/T1/MRG/ CFM-TD-1/2024-25, dated 23.11.2024 in deviation thereof, as per G.O.Ms.No.94, dated 01.07.2003 as illegal and for a consequential direction to the respondents to accept the tender of the petitioner submitted as per G.O.Ms.No.66 and consider and process the same and for a direction to strictly implement the said G.O.Ms.No.66 in all the tenders called for in future.
3. CASE OF THE PETITIONER:
i) The petitioner is a Civil Contractor. He has been regularly taking up Government Contracts, more particularly, respondent No.2 Board by duly participating in bidding process.2
KL,J W.P. No.33672 of 2024
ii) Vide G.O.Ms.No.94, dated 01.07.2003, Irrigation and Command Area Department (I&CAD) has issued comprehensive Tender Procedures and Registration of contractors Rules.
iii) I & CAD (Reforms) Department and I & CAD (PW-COD) Department issued certain amendments vide G.O.Ms.No.142, dated 20.12.2004, G.O.Ms.No.130, dated 22.05.2007, G.O.Ms.No.28, dated 30.04.2012 and G.O.Ms.No.14, dated 31.01.2015.
iv) On the request made by the President, Builders Association of India vide representation dated 13.01.2015, I & CAD (Reforms) Department, has issued G.O.Ms.No.66, dated 20.04.2015 enhancing the monetary limits of works for different class of Contractors.
v) Despite issuance of the G.O.Ms.No.66, dated 20.04.2015, respondent Nos.2 and 3 did not follow the said criteria and, therefore, batch of writ petitions were filed vide W.P. No.39757 of 2015 and batch, wherein this Court granted interim orders directing respondent authorities to receive and process the tenders and not to finalize the same.
vi) During pendency of the said writ petitions and subsistence of interim orders, respondent No.2 took a decision to proceed with implementation of G.O.Ms.No.66, dated 20.04.2015 in toto and gave 3 KL,J W.P. No.33672 of 2024 instructions to Tender Inviting Authorities vide proceedings dated 08.02.2016, to adopt G.O.Ms.No.66, dated 20.04.2015. On consideration of the same, vide common order dated 16.02.2016, this Court disposed of the aforesaid batch of writ petitions.
vii) In the meanwhile, respondent Nos.2 and 3 have issued e- Tender Notification No.EP-68/CGM(E)/TC/T1/MRG/CFM-TD-1/2024- 25, dated 23.11.2024, calling for tenders with regard to change of filter media of Beds number 1 and 4 with dual media using anthracite coal replacement of damaged nozzles and fittings at Mir-Alam Filter Beds under M.F. Beds Section, SD-1, Transmission Division No.1, Himayathsagar. Clause - 3 of the said Tender Notification deals with 'eligibility and qualification requirements'. Thus, according to the petitioner, respondent Nos.2 and 3 are insisting past experience as per G.O.Ms.No.94, dated 01.07.2003 by completely ignoring G.O.Ms.No.66, dated 20.04.2015. Last date for submission of Tender is 27.11.2024.
viii) M/s. Bhagyanagar Contractors Association to which the petitioner is a Member had filed a writ petition vide W.P. No.33457 of 2024 challenging the subject tender which was withdrawn with a liberty to file present writ petition in his individual capacity. However, the 4 KL,J W.P. No.33672 of 2024 petitioner has submitted tender on 27.11.2024 itself. Thus, according to the petitioner, the action of respondent Nos.2 and 3 in insisting for past experience in terms of G.O.Ms.No.94, dated 01.07.2003 by completely ignoring the amendments/changes issued vide G.O.Ms.No.66, dated 20.04.2015 is arbitrary and illegal.
ix) Respondent Nos.2 and 3 are insisting for the said past experience only to eliminate the petitioner and to favour for some other person. Only two (02) contractors including the petitioner herein have submitted tenders pursuant to the subject Tender Notification dated 23.11.2024. The said action of respondent Nos.2 and 3 is contrary to the decision taken by the Managing Director of the respondent Board vide proceedings dated 08.02.2016 and also the common order dated 16.02.2016 in W.P. No.39757 of 2015 and batch, order dated 21.04.2023 in W.P. No.11069 of 2023 and interim order dated 18.06.2024 in I.A. No.1 of 2024 in W.P. No.15076 of 2024. Therefore, the petitioner seeks a direction to the respondents to accept his tender as per G.O.Ms.No.66, dated 20.04.2015.
4. CONTENTIONS OF RESPONDENT Nos.2 AND 3:
i) Respondent Nos.2 and 3 filed counter contending that the subject tender requires highly skilled technical specifications and 5 KL,J W.P. No.33672 of 2024 contractors who are having past experience, are eligible. The petitioner has not fulfilled the said criteria. Therefore, the petitioner's bid becomes non-responsive. Subsequently, as per the nature of work, the Managing Director has issued instructions to the earlier G.Os. vide Memo No.1342/C2/2016, dated 16.05.2016. The respondent Board has rightly called for the tenders with stipulated terms and conditions in accordance to the prevailing Government Orders issued from time to time. There is no violation of any rule by the respondent Board while issuing e-tender process.
ii) It is further contended that as per the terms and conditions of the said G.Os. past experience in the Filter Media has been stipulated and accordingly tender was processed. The bid submitted by the petitioner was found to be non-responsive, as he did not fulfill the eligibility criteria.
iii) It is further contended that the said tender work is related to potable water and highly skilled technology is being used for filtration and purification of drinking water for public purpose. Past experience has been called for. Tender was processed who are having such experience, as such, the contention of the petitioner that the respondents are in a hurry to open tender to defeat the right of the petitioner is 6 KL,J W.P. No.33672 of 2024 incorrect. There is no error in the tender process and imposing the said condition. Two bidders were participated pursuant to the subject tender i.e., the petitioner herein and M/s. SS Constructions Co. The petitioner is meeting eligibility criteria but not meeting past experience in physical and financial criteria. M/s. SS Constructions Co. is not only meeting eligibility criteria, but also meeting the criteria of past experience in physical and financial. Therefore, the bid submitted by the petitioner becomes non-responsive and the bid of M/s. SS Constructions Co.
becomes responsive.
iv) It is further contended that the scope of judicial review in respect of the tender matters is very limit. This Court cannot substitute its views to the view taken by the Experts.
v) With the aforesaid submissions, respondent Nos.2 and 3 sought to dismiss the present writ petition.
5. ANALYSIS AND FINDING OF THE COURT:
i) It is relevant to note that scope of judicial review in tender matters is no more res integra. In National High Speed Rail Corporation Limited v. Montecarlo Limited 1, the Hon'ble Supreme 1 . (2022) 6 SCC 401 7 KL,J W.P. No.33672 of 2024 Court relying on the principle formulated by it in Tata Cellular v.
Union of India 2, held as follows:
"29. Thus, from the aforesaid decisions, it can be seen that a court before interfering in a contract matter in exercise of powers of judicial review should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or 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 relevant law could have reached"? And
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative, then there should be no interference under Article 226.
......
47. ..... Therefore, while exercising the writ jurisdiction challenging the tender process midway and/or while entertaining the writ petition challenging the award of contract with respect to such Mega projects, more particularly, when such Mega projects are funded by the foreign countries, the Courts have to bear in mind the following principles laid down by 2 . (1994) 6 SCC 651 8 KL,J W.P. No.33672 of 2024 this Court in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651] in para 94 as under : (SCC pp. 687-88) "94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an 9 KL,J W.P. No.33672 of 2024 administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
Based on these principles we will examine the facts of this case since they commend to us as the correct principles."
(emphasis supplied)
48. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion 10 KL,J W.P. No.33672 of 2024 while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is as such perverse and/or arbitrary and/or suffers from mala fides and/or favouritism, while entertaining such writ petition and/or pass any appropriate interim order, High Court may put to the writ petitioner's notice that in case the petitioner loses and there is a delay in execution of the project due to such proceedings initiated by him/it, he/they may be saddled with the damages caused for delay in execution of such projects, which may be due to such frivolous litigations initiated by him/it. With these words of caution and advice, we rest the matter there and leave it to the wisdom of the Court(s) concerned, which ultimately may look to the larger public interest and the national interest involved."
ii) In Tata Motors Limited v. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) 3, the Apex Court while reiterating the aforesaid principle held that a writ court should refrain itself from imposing its decision over the decision of the tenderer as to whether or not to accept the bid of a Tenderer unless something very gross or palpable is pointed out.
3. AIR 2023 SC 2717 11 KL,J W.P. No.33672 of 2024
iii) Paragraph Nos.48, 52 and 53 of the said judgment are relevant and the same are extracted as under:
"48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while 12 KL,J W.P. No.33672 of 2024 scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. (See : Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489).
52. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India, reported in (2005) 1 SCC
679.
53. The law relating to award of contract by the State and public sector corporations was reviewed in Air 13 KL,J W.P. No.33672 of 2024 India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not.
Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere."
iv) In the light of the above said principle, coming to the facts of the present case, the State of Andhra Pradesh has issued a comprehensive tender procedures and registration of Contractors Rules vide G.O.Ms. No.94, dated 01.07.2003. Clause - 10 of the said G.O. deals with 'qualification criteria'. It is relevant and the same is extracted as under:
14
KL,J W.P. No.33672 of 2024 "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 preceding 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 percent 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 mobilisation advances) of the following Key and critical equipment for this work.
Note: (Based on the studies carried out by the Engineer, the minimum suggested major equipment to obtain the completion of works in accordance with the prescribed construction schedule/mile stones are shown in the above list)
b) Availability of the Key personnel with adequate experience as required should be indicated based on the requirement for the work to be executed.
c) Liquid assets/credit facilities of not less than Rs. Lakhs (credit lines/letter of credit/solvency certificates from Banks etc. shall be equivalent of the estimated cash flow for three months in peak construction period) 15 KL,J W.P. No.33672 of 2024
d) EMD in the shape of Bank Guarantee in the standard format enclosed, for Rs..... (one percent of the estimated contract value) to be valid for the period as indicated at para 1.03 (d) i.e., period of completion plus defect liability period.
e) Experience relating to the works executed in State/Central Government departments or State/Central Government undertakings shall only be considered."
Thereafter, the Government issued the aforesaid G.Os. amending certain Clauses to the said G.O.Ms.No.94, dated 01.07.2003. On the representation dated 13.01.2015 made by the President, Builders Association of India, I & CAD (Reforms) Department, has issued G.O.Ms.No.66, dated 20.04.2015 enhancing the monetary limits of works for different class of Contractors.
v) Relevant amendments are extracted below:
For Read as For Para (12) Qualification Criteria for Read as Para (12) Qualification Criteria works costing Rs.50 lakhs and below: for works costing Rs.1000 lakhs and below:
The qualification criteria at para.10 of as (i) The qualification criteria at well as modified procedure of collecting para.10 (A) will not be made EMD in the shape of Bank Guarantee applicable for the works costing will not be made applicable for the works Rs.1000.00 lakhs (ECV) and costing Rs.50 lakhs (ECV) and below. below. for Civil works in all For above works single cover system State/Central Government shall be followed and the EMD shall be Departments, Central State/ submitted along with the completed Government undertakings/ Public Tender Schedule. sector undertakings/ Corporations.
(ii) However for civil works costing Rs.50.00 lakhs (ECV) and below, collection of EMD only in the shape of D.D. will continue.16
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vi) It is also not in dispute that when respondent Nos.2 and 3 did not follow the said enhancement pursuant to the G.O.Ms.No.66, dated 20.04.2015, a batch of writ petitions were filed before this Court vide W.P. No.39757 of 2015 & batch. This Court also granted an interim order directing the respondent Board to proceed with the tender process, but not to finalize.
vii) During pendency of the said writ petitions and subsistence of interim orders, the Managing Director of the respondent Board had issued proceedings No.HMWSSB/MD/Tender-Procedures/2015-16/51, dated 08.02.2016, stating that the Board has decided to proceed with implementation of the said G.O.Ms.No.66, dated 20.04.2015 in toto in HMWSSB and subsequent order from the Government, if any, would be followed in due course. The Managing Director of the respondent Board has issued the said proceedings dated 08.02.2016 to all the Tender Inviting Authorities of HMWSSB with instructions to adopt G.O.Ms.No.66, dated 20.04.2015 read with G.O.Ms.No.94, dated 01.07.2013 and its amendments for calling the tenders. The same was brought to the notice of this Court, and on consideration of the same vide common order dated 16.02.2016, this Court closed the said writ 17 KL,J W.P. No.33672 of 2024 petitions. The said principle was also reiterated by this Court vide order dated 21.04.2023 in W.P. No.11069 of 2023.
viii) It is relevant to note that when the said G.O.Ms.No.66, dated 20.04.2015 was not followed, vide order dated 18.06.2024 in I.A. No.1 of 2024 in W.P. No.15076 of 2024 this Court granted interim direction permitting the petitioners therein to submit their bids in respect of the subject works therein in accordance with G.O.Ms.No.66, dated 20.04.2015. The said interim order is subsisting and the said writ petition is pending.
ix) In Nalla Babu v. The State of Telangana 4, tenders therein were in relation to engaging 'Mini Sewer Cleaning Machine having jetting, grabber with Hopper and roding machine facility'. Therefore, it was not a civil work. On examination of the facts of the case therein and also the principle laid down by the Apex Court, this Court vacated the interim order passed on 13.04.2023. Therefore, the facts of the said case are different to the facts of the present case.
x) It is apt to note that G.O.Ms.No.94, dated 01.07.2003 and G.O.Ms.No.66, dated 20.04.2015 are with regard to civil works. Vide proceedings dated 08.02.2016, the Managing Director of the respondent 4 . I.A. No.5 of 2023 in W.P. No.9971 of 2023, dated 10.01.2024 18 KL,J W.P. No.33672 of 2024 Board specifically stated that it was decided to proceed with implementation of G.O.Ms.No.66, dated 20.04.2015 in toto in HMWSSB and subsequent order from the Government, if any, would be followed in due course. Thus, he has instructed all the Tender Inviting Authorities of the HMWSSB to adopt the G.O.Ms.No.66, dated 20.04.2015 read with G.O.Ms.No.94, dated 01.07.2013 and its amendments for calling the tenders. The said fact was brought to the notice of this Court while disposing of the said W.P. No.39757 of 2015 and batch vide common order dated 16.02.2016.
xi) It is also apt to note that Clause - 3 of the subject tender deals with 'eligibility and qualification requirements'. It is relevant and the same is extracted hereunder:
"3. ELIGIBILITY AND QUALIFICATION REQUIREMENTS 3.1 This invitation to tender is open only to all eligible Registered Contractors/Firms of Class-III (Civil) & above as per G.O.Ms 66 1 & CAD (Reforms) Department) dt: 20.04.2015 amendment to
6.O.Ms 941 & CAD (PW-COD) Dept dated: 1-7-
2003 of Irrigation & CAD Department, GoAP and are to be executed for the HMWSSB on the basis of Schedule of Percentage Tender. Tender. The Tenderers will have to state clearly their willingness 19 KL,J W.P. No.33672 of 2024 to execute the works at the percentage excess or less or at par over the Estimate Contract Value indicated at Schedule- A. A higher class contractor is allowed to tender for works falling in lower class without getting himself registered in the lower category." Whereas, Clause - 3.7 deals with 'past experience' and the same is extracted as under:
"3.7 a) Past Experience:
The Tenderer shall have executed the minimum quantities of work as stated below.
Experience relating to the works executed in any State / Central Government Departments, or State/Central Undertakings / Boards / Corporations, Municipalities and Municipal Corporations, Urban Development Authorities will only be considered.
The past performance of the tenderer is established from record of successful execution and completion of similar type of works in time and in workman like manner. For this purpose testimonials etc., from clients for whom the applicant had executed similar type of works during the past five years and having present worth equal to or higher than minimum amount 20 KL,J W.P. No.33672 of 2024 indicated below will have to be submitted by the tenderer and where necessary reference will be made to previous clients. Tenderers are expected to furnish past performance data for the works referred by them and indicated in Schedule-F (enclosed in Volume-I). Said similar works executed during the past five years i.e. not earlier than April-2014 shall satisfy the following requirements.
i) It is necessary that the tenderer have executed and completed successfully similar type of Dual/Change of Sand Media Filter bed works OR Construction of WTP with Dual/Change of Sand Media Filter bed works in one year during the last ten years (specified financial years) i.e. not earlier than April-2014. The value of the similar works executed and completed successfully in one year by the tenderer shall be minimum of Rs.80.974 lakhs. The present worth of each of these jobs executed and completed by the tenderer in the past will be calculated based on escalation of 10% per annum.
ii) It is necessary that the tenderer should have executed and completed successfully similar type of change of filter media with using anthracite coal/Sand Media Filter beds works OR Similar 21 KL,J W.P. No.33672 of 2024 type Dual/Filter Sand Media changing with discharging capacity of each bed 125 Cum/Hr.
minimum 1 Bed and MoM of Dual Media Filter of WTP at least 125 Mld. In one or more contracts added together in any one year during the past ten years i.e., not earlier than April'2014. a. The past experience certificate furnished by tenderer should be signed by the Executive Engineer/in charge of work and counter signed by the Superintending Engineer or equivalent. In case where Superintending Engineer post is not in existence, the counter signature has to made by the next higher authority.
b. The past performance of the bidder in satisfactory execution of works taken up (ongoing works) & completed works in HMWSSB shall also be taken into consideration in evaluation and awarding of the contract.
c. Any ambiguity in respect of financial standings and past experience or the certificates produced by the bidder, in respect of the bids received will be placed before the Tender Accepting Authority for its decision. The decision of the Tender Accepting Authority would be final and based on such decision, the price bids will become eligible for opening.
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iii) This criteria of past experience shall be satisfied for the work/works (including this work) quoted by the tenderer for HMWSSB and are under consideration by HMWSSB. If any tenderer has already been awarded and are under consideration for award by HMWSSB on the basis of a work for past experience, the said work will not be considered again for evaluation of any other work/works included in the e-Tender CGM(E)/TC/T1/MRG/CFM-TD-1/2024-25 dated: 23-11-2024 issued by the Chief General Manager (Engg). Transmission Circle, HMWSSB, Khairatabad, Hyderabad."
xii) Thus, according to respondent No.3, the subject work is a civil work, tenders were called as per the aforesaid two (02) G.Os. i.e., G.O.Ms.No.66, dated 20.04.2015 read with G.O.Ms.No.94, dated 01.07.2013. Therefore, respondent Nos.2 and 3 shall necessarily follow the said G.Os. They cannot call for tenders pursuant to the said G.Os. and insist upon the tenderers to submit past experience, which is in contrary to the aforesaid GOs. The same is also contrary to the decision of the Managing Director of the respondent Board.
xiii) It is the specific case of the petitioner that it has submitted tender directly in accordance with G.O.Ms.No.66, dated 20.04.2015. 23
KL,J W.P. No.33672 of 2024 Respondent Nos.2 and 3 are insisting for past experience, which is contrary to the said G.O.Ms.No.66, dated 20.04.2015.
xiv) It is relevant to note that respondent Nos.2 and 3 are placing reliance on the earlier proceedings vide Memos bearing Nos.1342/C2/2016 and 9589/Engg.2/2024, dated 16.05.2016 and 14.07.2024 issued by the Government of Telangana, Municipal Administration and Urban Development (Engg) Department, respectively. Perusal of the same would reveal that in the memo dated 16.05.2016, it is specifically mentioned that it may be relaxed for special works i.e. the works that needs specialized technical requirement, and also a provision for Joint Venture can be given in all such cases so that new contractor of Telangana can participate and gain experience in view of the facility given in G.O.Ms.No.66, dated 20.04.2015 along with eligible prime partner. However, the HMWSSB shall keep in view the4 commitment made before this Court so that there will be no legal complication. Thus, the Managing Director, HMWSSB, Hyderabad, was requested to take further action accordingly.
xv) In Memo dated 14.07.2024, there is no consideration of the G.O.Ms.No.66. Only G.O.Ms.No.94, dated 01.07.2003 and G.O.Ms.No.12, dated 28.01.2015 were referred. Thus, according to 24 KL,J W.P. No.33672 of 2024 learned counsel for the petitioner, the same is not with regard to 'civil works'. There is no consideration of the undertaking dated 10.02.2016 of the Managing Director of the respondent Board in both the said Memos dated 16.05.2016 and 14.07.2024.
xvi) It is relevant to note that respondent No.3 has specifically mentioned with regard to the tender conditions. Even according to respondent Nos.2 and 3, the petitioner meets the eligibility requirement except past experience. Therefore, respondent Nos.2 and 3 cannot say that the tender of the petitioner is non-responsive on the ground that it is not meeting past experience in physical and financial criteria requirement. Respondent Nos.2 and 3 shall necessarily consider G.O.Ms.No.66, dated 20.04.2015 and undertaking/commitment/decision of the HMWSSB, dated 08.02.2016. In the present case, there is no consideration of the same.
xvii) It is also the specific contention of the petitioner that it has submitted tender at 8.77% less, whereas M/s. SS Constructions Company is quoted at 0.1% less. However, the same is only on instructions. The respondents have to open financial bid. Therefore, at this stage, this Court cannot consider the same. The petitioner is seeking a direction to the respondents to follow GOs and implement 25 KL,J W.P. No.33672 of 2024 G.O.Ms.No.66, dated 20.04.2015 in its letter and spirit in calling subject tender dated 23.11.2024. Vide order dated 29.11.2024 this Court directed respondent No.3 to proceed with the tender and not to finalize the same.
6. CONCLUSION:
i) In the light of the aforesaid discussion, this Court is of the considered view that respondent Nos.2 and 3 cannot contend that the tender submitted by the petitioner is non-responsive on the ground that he is not meeting eligibility criteria with regard to 'past experience' in physical and financial criteria requirement. The respondents shall implement G.O.Ms.No.66, dated 20.04.2015 and commitment/decision dated 08.02.2016.
ii) In the light of the aforesaid discussion, this writ petition is allowed directing respondent Nos.2 and 3 to accept the tender of the petitioner submitted in terms of G.O.Ms.No.66, dated 20.04.2015, consider and process the same if the tender of the petitioner is otherwise in order. If respondent Nos.2 and 3 is found that the petitioner is successful bidder, they shall award the subject work to the petitioner on the specific terms and conditions of the subject tender as per Notification 26 KL,J W.P. No.33672 of 2024 dated 23.11.2024. In the circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 31st December, 2024 Mgr