M/S. Sv Infratech Engineers Pvt. Ltd vs The State Of Telangana on 5 February, 2024

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Telangana High Court

M/S. Sv Infratech Engineers Pvt. Ltd vs The State Of Telangana on 5 February, 2024

Bench: Nagesh Bheemapaka

         HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION No. 19516 OF 2023

O R D E R:

The Present Writ Petition is filed to declare the action of Respondents 2, 3, 4 and 5 in selecting the 6threspondent as the successful bidder in the tender issued vide NIT.No e-03/2023-24/SE/STAGE-II/BTPS/D.No.78/22-23 dated 18.04.2023 for the work "Preventive/Periodical Maintenance Works on Mills for the FY 2023-24 in Bowl Mills of Unit IV BTPS"and entering into an agreement with the 6th respondent and issuing a work order in his favour, as illegal, arbitrary, malafide, unreasonable, unconstitutional and against the principles of natural justice.

2. Heard Sri. M. Pratheek Reddy, learned counsel for petitioner, Sri. R. Pavan Reddy, learned Standing Counsel for Respondents 2 to 5 and Sri M. Kiran Reddy, learned counsel for the 6th respondent.

3. In view of the urgency pleaded by both the parties, the present Writ Petition has been taken up for final disposal.

4. Petitioner is a company registered under the provisions of the Companies Act, 2013 and engaged in the work 2 of executing works / contracts for maintenance, care, erection and repairs. The Company has been long associated with the 2nd respondent and has undertaken several erections and maintenance works in the past. It has previously undertaken maintenance works for Units-I and II for the financial years 2021-22 and 2022-23 at Bhadradri Thermal Power Station [BTPS]. In April, 2023, petitioner was offered to participate in a single-part limited tender concerning EPC works in Unit IV of BTPS vide NIT No. e - 03/ 2023- 24/SE/STAGEII/BTPS/D.No.78/22-23, dated 18.04.2023 for the work of "Preventive / Periodical Maintenance Works on Mills for the FY 2023-24" for an estimated procurement value of Rs.10,75,626/-. As stated, tender has only a single part i.e., price bid and does not have a prior pre-qualification or technical evaluation stages. Similarly, Mars Engineering& Enterprises, a sole proprietorship with the 6th respondent as its proprietor, was also offered to participate in the said tender. Petitioner executed each and every work that was assigned in the past with the utmost diligence and excellence.

It is stated, when petitioner viewed the documents submitted by the 6threspondent on behalf of Mars Engineers& Enterprises, it w a s realised that the said sole proprietorship qualifies in no way whatsoever under the tender document and 3 that documents submitted by it are only misleading, deceptive and inconsonant with the requirements under the NIT dated 18.04.2023. Accordingly, petitioner was constrained to issue the letter dated 03.06.2023 to the 4threspondent not to consider Mars Engineers & Enterprises for the said tender bidding. However, without giving any notice or proceedings, the 2ndrespondent represented by the 5threspondent has chosen the 6threspondent's tender bid, surreptitiously entered into a contract with it and even issued a work order in its favour pursuant. The 6th respondent performed certain religious rituals on 28.06.2023 and began work in Unit-IV on the same day.

It is stated that aggrieved by the arbitrary action of the 5th respondent in collusion with the 6th respondent, petitioner had even approached the 2nd respondent on 30.06.2023 and several other dates with representation dated 30.06.2023 imploring the said authority to rectify the situation by recalling the proceedings, contracts and orders issued in favour of the 6th respondent and to reprocess the tender in a fair and rational manner. While several assurances were given to petitioner by the different officials working in the 2nd respondent that situation would be remedied and petitioner was only disillusioned and no action was taken by any of the official respondents. It is further contended that despite best efforts, 4 officials have refused to provide copies of contract and work order to petitioner. Having exhausted all the possible remedies available, he was constrained to file this Writ Petition

5. Learned counsel for petitioner while contending that 6th respondent had furnished fraudulent experience, submits that Mars Engineers &Enterprises was invited to participate in the tender, experience certificates and related documents were submitted by Mars Engineers & Erectors. Furthermore, the said experience is outdated and irrelevant since the same concerns the years between 2014 and 2017 which is, in no way, contemporary for Mars Engineers & Enterprises to use. He also submits that sole proprietorship cannot at all utilise the past experience of a partnership firm that ceased to exist far long ago in 2016-17 itself since there would then exist no complete takeover of the firm with no portion or remnants of the experiential contribution lost or left behind on its transition from being the previous firm to the present sole proprietorship. Even on e-procurement website, slots against which experience- related documents were to be uploaded, only stipulated experience for 2020-21, 2021-22 and 2022-23. Despite the same, the 6th respondent submitted documents pertaining to Mars Engineers & Erectors for the year before 2017 which are entirely irrelevant and unacceptable. The utter lack of proximity 5 in time between Mars Engineering & Erectors and Mars Engineers & Enterprises clearly demonstrates that experience enjoyed by the prior partnership firm cannot at all be invoked by the 6th respondent after a lapse of over 6 years. The 6th respondent left behind such works in 2016 itself and undertook several financial enterprises in Khammam which have turned out to be unsuccessful. Therefore, learned counsel contends that the 6th respondent has now cleverly colluded with the 5threspondent in tweaking the tender conditions to his favour and achieving the tender by submitting documents that are old, outdated and irrelevant. Learned counsel further attributes that collusion has already become public knowledge among all existing contractors in the region and each of them is severely troubled and aggrieved by the said mala fide action of Respondents 5 and 6. Therefore, for this reason alone, selection of the 6th respondent for the said work concerning Unit IV, Bowl Mills, BTPS is completely unsustainable.

Learned counsel further submits that NIT requires bidders to submit several documents, some of which are statutory in nature such as GST and EPF registrations. However, the 6th respondent submitted documents for Mars Engineering & Enterprises from October, 2022 only such as GST registration on 16.10.2022, EPF registration on 6 20.10.2022, ESIC registration on 20.10.2022, Udyam registration on 16.10.2022 and labour license on 21.10.2022 to enable collusion between Respondents 5 and 6. Similarly, tender document also requires bidders to submit Income Tax Returns and the 6threspondent submitted the said returns in his individual name i.e., Srinivasa Rao Maddula and not in the name of Mars Engineering & Enterprises which is un-surprising since the said entity did not even exist for the previous three years. Further, even in his individual name, the returns do not disclose any amounts whatsoever attributable to the kind of work required to be done under the NIT. The meagre amounts existing in the said returns pertain only to rental income and land proceeds. This too shows that Mars Engineering & Enterprise has no commercial history or relevance whatsoever for the 6threspondent to be selected in the tender for the work of "Preventive/Periodical Maintenance Works on Mills for the FY 2023-24".

Learned counsel further submits that most tender documents usually require bidders to have executed similar works for the past 3 years, Similarly, even the NIT dated 18.04.2023 also requires under Clause 2 (I)(1) in Section II that bidder would have to submit "Copies of previous work orders for similar works/Certificate showing minimum 3 years experience 7 in TSGENCO in similar type of work on any one of bowl mills (XRP1043, XRP943, XRP903), self-declaration of relevant technical skills, etc.". Petitioner contends that there is no way in which Mars Engineering & Enterprises would have been able to submit such experience for the past 3 years when it had been in existence only from October 2022. Moreover, the work experience details submitted by the 6threspondent were of over six years ago. Therefore, there is no way in which Mars Engineering & Enterprises would have qualified under the said NIT. In addition to this, the official respondents have most illegally and arbitrarily issued a corrigendum to NIT modifying Clause 2(I)(1) in Section II to say that "Copies of previous work orders for similar works/Certificate showing experience in similar type of work on any XRP bowl mills in TSGENCO, self- declaration of relevant technical skills, etc." Petitioner highly suspects that the said corrigendum was brought about only after the 6th respondent submitted his documentation and it was realised that Mars Engineering experience. This has been done to benefit and favour the 6th respondent to the disadvantage of every other bidder that had participated. According the learned counsel, the said corrigendum is also violative of Clause 24(b) at page no. 4 of NIT which states that "TSGENCO reserves the right to amend or modify the tender and its conditions on or 8 before schedule closing date and time, under intimation to the tenderers."

6. According to the learned counsel, collusion and mala fide conduct of Respondents 5 and 6 has permeated tenders for other Units concerning BTPS also. Previously, a tender notification was issued concerning Preventive/Periodical Maintenance works for Bowl Mills of Unit-I and petitioner was chosen as the successful bidder. Accordingly, the 4th Respondent issued Lr.No.SE/E&M-

II/STG/BTPS/F.Doc/D/No:301/2022 dated 08.05.2023 requesting petitioner to commence work as per the terms and conditions of e-tender. However, the 4 respondent later issued another letter vide Lr.No: SE/E&M-II/Stg-I/BTPS/F.Doc/D.No:

520/2023 dated 03.06.2023 stating that the said e-tender for the bowl mills of Unit-I was thereby cancelled "on administrative grounds" without any notice and that "No further correspondence will be entertained in the matter." Thereafter, a fresh Notice Inviting Tender was issued with No. 15/2023-24 of SE/E&M-ii/Stg-1/BTPS with an amended condition that participating bidders must have a minimum of three years "overall" experience in the same nature of works. Same is the case with tender regarding Gravimetric Raw Coal Feeders in Unit-I in which petitioner first emerged successful and then, the 9 4threspondent cancelled e-tender "on administrative grounds"

without any notice. This was done only to benefit the 6th respondent who has brazenly colluded with the 5th respondent, which is the fact now known to all the contractors involved. Likewise, in respect of Unit-II, learned counsel submits that, a limited tender was issued vide NIT No. e-02/2023- 24/SE/STAGE-II/BTPS/D.No.74/22-23 dated 17.04.2023 and Mars Engineering & Enterprises was invited to participate in the tender. Despite petitioner being associated with the 2ndrespondent for several years undertaking various erection and maintenance works and despite undertaking such works for Units-I & Il for 2021-22 and 2022-23 at BTPS, petitioner was not even invited to participate in the said limited tenders for the periodical maintenance of Unit-II for 2023-23 and illegally, collusively and arbitrarily, contract was awarded to Mars Engineering & Enterprises although the 6threspondent does not qualify in any way whatsoever to execute the works involved. He submits that these facts were put forth before the Respondents2 and 4, but of no avail. According to learned counsel, the recent instances concerning Units-I &Il of BTPS themselves clearly demonstrate arbitrary, mala fide and highly illegal and irregular manner in which contracts are recently being awarded to the 6th respondent upon his entry into the field.

Learned counsel therefore, submits that it is settled law in contractual matters, the State or "other authorities" are bound to act within the legal limits and their actions are required to be free from arbitrariness and favouritism. The procedure adopted by the State in awarding contracts can be Judged and tested against Article 14 and this Hon'ble Court's intervention is necessary when the relevant considerations are ignored and / or taken into account or when tender process involves arbitrariness or favouritism. Learned counsel in support of their contentions relied upon the following judgments:

1. Meerut Development Authority v. Association of Management Studies 1

2. R.D.Shetty v. International Airport Authority of India 2

3. Mahabir Auto Stores v. Indian Oil Corp. 3

4. MP Power Management Company v. Sky Power Southeast Solar Pvt. Ltd. 4

5. AG Construction Co. v. Food Corporation of India 5;

7. A counter-affidavit was filed on behalf of Respondents 2 to 5. Learned Standing Counsel would submit that petitioner did not disclose any valid grounds for grant of 1 (2009) 6 SCC 171 2 (1979) 3 SCC 489 3 (1990) 3 SCC 752 4 2022 Supreme (SC) 1170 5 2021 SCC Online P&H 306.

any relief and approached this Court by suppressing the factual / material objects, hence, Writ Petition needs to be dismissed ab initio. Further, petitioner filed this Petition by creating a concocted story only with an intention to harass the respondents without having any legal right.

Learned Standing Counsel would submit that the 2nd respondent issued tender notification for the work of "Preventive/Periodical maintenance works on Mills for the financial year 2023-24" (Annual maintenance works of Mills), but not for EPC works in Unit-IV of BTPS, as alleged. Total 6 bidders participated in the said tender. He vehemently contends that mandatory documents mentioned in tender Notification are for the purpose of support but not for qualification criteria since nature of tender invited is limited single stage commercial bid for which no pre-qualification is required. Same fact is known to petitioner as he mentioned the same in para 3 of his affidavit. As such, the allegations levelled against the answering Respondents that they have not issued any reply to the letter dated 03.06.2023 wherein he informed that the documents submitted by the 6threspondent are misleading, deceptive and inconsonant and also the 6threspondent is not eligible because the Firm owned by the 6th respondent is having sole Proprietorship. It is pertinent to mention that petitioner himself 12 has knowledge that the nature of tender is only a limited one and no pre-qualification is required. Further, it is submitted that Clause No.2 of Section-II titled "Special tender conditions"

in NIT dated 18.04.2023 which was issued on e-procurement platform vide tender ID 408740, dated 28.04.2023 and the same was amended by the corrigendum on 01.05.2023. In the said Notification and in the corrigendum as well, it was not stipulated to upload the experience for 2020-21, 2021-22 and 2022-23 but contained placeholder to upload the previous experience document/documents. Further it is submitted that either any firm or individual contractors could participate in the tendering process. There are no constraints for individual contractors to participate in the bidding process. These facts are evident from the documents submitted by petitioner himself before this Court as such Writ Petition shall be dismissed in limini. Learned Standing Counsel further submits that after receiving letter dated 30.06.2023, the 2nd respondent internally enquired about the allegations raised by petitioner and after knowing the factual aspects, advised them to follow the procedure of tender in accordance with the notification issued thereof. It is not true that the official respondents have given several assurances to petitioner whenever he approached them, except the letters mentioned he never approached any of the 13 respondents personally. It is further submitted that the office cannot provide copies of award of work to other firms which are not L1. The allegations raised in the affidavit are only for the purpose of filing the present frivolous Writ Petition, as such the same may be dismissed ab-inito.

Learned Standing Counsel would submit that nature of tender is only Limited Tender (Single Part Bid) i.e., price bid only, no past experience is required but only who quotes the lowest price such bidder would become the L1. Since the 6th respondent quoted far lesser amount than petitioner, he had become the successful bidder. He would further submit that income tax clearance certificate is either required from the firm or individual contractor. The 6th respondent submitted Income tax return for the financial year 2022-23 and commercial history of the tenderer is not the criterion in finalizing lowest bidder. He would further submit that as per TSGENCO Standard general terms and conditions, tenderer should have experience in executing similar type of work, at least once in the last 6 financial years including present financial year. In this regard, it is to submit that corrigendum dated 01.05.2023 was issued to the original NIT dated 18.04.2023(e-Tender Id.408740 dt. 28.04.2023) wherein similar experience in any type of bowl mills was informed to be 14 considered. In fact, corrigendum was issued in the interest of the organization. It is to submit that NIT d18.04.2023 was published on e-procurement platform on 28.04.2023(Friday) and corrigendum was published on 01.05.2023(Monday) without any delay or pre-determination. As per the tender document "TSGENCO reserves the right to amend or modify the tender and its conditions on or before schedule closing date, under intimation to the tenderers". The corrigendum was delivered to all the limited tender agencies including petitioner on e-procurement platform, Government of Telangana. The above corrigendum was issued for better participation and competition among the agencies to protect the interests of TSGENCO. Learned counsel would submit that had the corrigendum was not issued, even petitioner was also not eligible to participate in the said Tender since he had only 2 consecutive years of maintenance experience.

It is submitted that petitioner misrepresented regarding letters mentioned in para15 of the affidavit filed by him. Either the 4th respondent or Respondents 5 and 7 have never issued Lr. No. SE/E&M-II/Stg-

I/BPS/F.Doc/D.No.301/2022 dated 08.05.2023, Lr. No. SE/E&M-II/Stg-I/BPS/F.Doc/D.No.520/2022 dated 03.06.2023. The above letters were issued by the office of 15 Superintending Engineer /Stage-I/BTPS/Manuguru which are no way connected to the present Petition. Petitioner has dragged the 2nd respondent into this petition without any basis. The long association of petitioner with the 2nd respondent is not the criterion for awarding work on competitive bids to petitioner. The 4th respondent carried out tendering of NIT No.e-02/2023- 24/SE/Stage-II for Unit-III mill works and not for Unit-I & Unit- II. Tendering authority and tender numbers are misrepresented by petitioner to mislead this court.

Learned Standing Counsel would submit that contention of petitioner that authorities acted out of legal limits and arbitrarily and shown favouritism is totally denied and there is no violation of Article 14 of the Indian Constitution and the entire process of tendering is performed legally and without any arbitrary or not against the principles of natural justice. Petitioner filed the present Wilt Petition with a mala fide intention and with an ill-motive without having proper reason. The answering respondents have acted in accordance with law and the lowest price bidder was awarded the work as per the terms and conditions of said tender notification. The tendering process was conducted on e-Procurement platform (as per Central Vigilance Commission guidelines) and in a transparent way. The official respondents have adhered to the organization 16 rules and procedures, and acted with a bona fide, rational and legitimate way in the tendering process. The provisional service work order dated 16.06.2023 was issued to L1 tenderer M/s Mars Engineers and Enterprises. Subsequently, M/s Mars Engineers and Enterprises started maintenance works on Mills from the same date. Learned counsel would further submit that petitioner unnecessarily, mounted undue pressure upon the answering respondents and used to visit very frequently. The petitioner tried to get undue favouritism to him to get the benefit of awarding the works in an illegal manner. Since, tendering process is lawful, no higher authorities have shown any favouritism. Petitioner levelled frivolous and baseless allegations against official Respondents, who acted legitimately during the tender process.

Lastly, learned Standing Counsel would submit that petitioner had approached this Court by suppressing all material facts with ill-intention to harass the respondents, as such, Writ Petition shall be dismissed imposing exemplary costs on petitioner who not only wasted precious judicial hours but also harassed the respondents so far, in all aspects. Learned counsel would also submit that since this Court has not granted any interim stay with respect to awarding work and the 6th respondent finished 80% of work so far.

8. Learned counsel for petitioner in support of their contentions relied upon the following judgments:

1. N.G.Projects Limited v. Vinod Kumar Jain 6& Others;

2. Tata Motors Limited v. Brihan Mumbai Electric Supply & Transport Undertaking (Best) 7

3. WP(C).No.10240/2015; M/s. Bharat Power Control Systems vs. Govt. of NCT of Delhi &Ors.

9. A reply affidavit was filed by petitioner stating that Respondents 6 and 7 colluded with each other to exclude all possible competition from the tender works and to create a monopoly with Mars Engineering and Enterprises in all units of BTPS. He would submit that merely because tender is a single part tender does not mean that the Respondents can throw all principles of fairness and competition to the wind and act in an arbitrary manner. The countering respondents are completely ill-placed to state that the "mandatory conditions" in the tender notification are not really mandatory. This submission by itself shows that the Respondents have acted contrary to the stipulations in the tender notification to favour and benefit the 6thRespondent. Similarly, the issue raised by the petitioner in the writ petition is not that a sole proprietorship cannot 6 (2022) 6 SCC 127.

7 2023 SCC Online SC 671.

participate in a tender. Learned counsel submits that petitioner has not only sent multiple representations to the official respondents; such as on 03.06.2023 and 30.06.2023, but also visited the offices of the respondents on several dates ie. on 12.05.2023, 19.05.2023, 24.05.2023, 21.06.2023, etc. All such details have been tabulated and elaborated in para No. 18 of the affidavit filed by petitioner. In any case, even if it is hypothetically agreed without prejudice that petitioner has not visited the offices of respondents, the counter affidavit still does not explain why not a single representation issued by petitioner is disposed of. If such is the case, it is inexplicable why NIT dated 18.04.2023 even requires the bidders to submit papers relating to their prior experience concerning the works in question. This very submission of respondents that no past experience is required shows the grave nature of collusion and mala fide action in favour of the 6th respondent. The same is the case with the Respondents' submission that commercial history of bidders is irrelevant. Such a statement is made in the counter only because the 6th respondent's proprietorship has no commercial history whatsoever and that it has only been floated recently in October 2022 to enable collusion between the 5th and the 6th respondents. The countering respondents have most illegally and arbitrarily issued a corrigendum to NIT modifying 19 Clause 2(II)(1) in Section II to say that "Copies of previous work orders for similar works/Certificate showing experience in similar type of work on any XRP bowl mills in TSGENCO, self- declaration of relevant technical skills, etc." This has been done only since it was realised that Mars Engineering & Enterprises would not qualify for lacking the requisite experience and to benefit and favour the 6th respondent to the disadvantage of every other bidder that had participated. Petitioner has been executing similar works every year in the past several years and therefore, the countering respondents' statement that even petitioner would be ineligible is baseless, unreasonable and absurd. Except stating that principles of natural justice were followed, respondents do not explain how the 6th respondent can use the experience of an earlier firm that has ceased operations and has become dormant long ago. Therefore, the said respondents' action of issuing the provisional service work order dated 16.06.2023 is completely illegal and arbitrary. Hence learned counsel submits that petitioner has approached this Court in fair manner by stating all the facts.

10. Learned counsel for the 6th respondent would submit that the 6th respondent participated in the tenders and uploaded all required mandatory documents as per NIT terms and conditions and against the experience one P.O. copy with 20 similar work experience which is in the name of MARS ENGINEERS AND ENTERPRISES and four more work orders of Mars Engineering and Erectors. As one work order copy which is in the name of MARS ENGINEERS AND ENTERPRISES is enough to satisfy the terms and conditions. Learned counsel submits that there were three bidders 6th respondent, petitioner and another by name Foster Power Engineers and Erectors in bidding. Petitioner quoted 5% less where as 6th respondent had quoted lowest rates with 36% less than the estimated value and stood L1, as such became successful bidder. Thereafter, the official respondents asked for further negotiation of rates and also for clarification for uploading work orders of Mars Engineering and Erectors even though it is irrelevant, and for payment of additional security deposit as per procedure. Learned counsel submits that being a sole proprietor of Mars Engineers and Enterprises, he approached the office and submitted D.D. drawn for Additional Security Deposit and also letter clarifying that 6th respondent was the managing partner of erstwhile firm MARS ENGINEERING AND ERECTORS along with the partnership deed, declaration of retirement of other partner in which the other partner has given 'NOC' to utilize the whole experience of the firm to any business in the same sector run by the 6th respondent.

Learned counsel would further submit that after verifying the documents uploaded by the 6th respondent's firm, he came to know that they have taken legal opinion at their SLA on the issue, thereafter the 4threspondent issued provisional work order to the 6th respondent on 16.06.2023 to start the work, as it had fulfilled all requisites of NIT and quoted 36% less than the estimated rates and stood L1. Learned counsel would further submit that petitioner intentionally and intelligently highlighting the NIT terms and conditions before corrigendum to mislead this Court in the same manner as higher officials of TSGENCO and failed so far. It is submitted that as per final NIT terms and conditions, contractor should upload "copies of previous work orders for similar works/ certificates showing experience in similar type of work on any of XRP bowl mills in TSGENCO". The 6th respondent uploaded document which is in the name and style of MARS ENGINEERS AND ENTERPRISES and showing similar type of experience and this satisfies the said clause. Hence, the 4threspondent considered the offer given by 6th respondent and proceeded further. He submits that the 6th respondent is the sole proprietor for MARS ENGINEERS AND ENTERPRISES and managing partner of erstwhile partnership firm MARS ENGINEERING AND ERECTORS which carried out number of works in APGENCO and TRANSCO for the past two 22 decades up to the satisfaction of field engineers and acquired lots of experience in carrying out the similar nature of works and the 6th respondent is carrying out crucial works which are critical than the subject works in XRP- 943 BOWL MILLS in BTPS at present as sole proprietor in the name and style of MARS ENGINEERS AND ENTERPRISES. By considering the past experience and present status of sole proprietary firm, the sole proprietor of MARS ENGINEERS AND ENTERPRISES can be entitled to utilize past experience of erstwhile firm in tendering process as per above-referred construes and there is no need of experience in the same name as the bidding firm as held by the Hon'ble Supreme Court in New Horizon Ltd. Vs. Union of India and also various judgments of other High Courts. Hence, it is evident that the 6th respondent being the sole proprietor of MARS ENGINEERS AND ENTERPRISES is liable to use past experience of erstwhile partnership firm MARS ENGINEERING AND ERECTORS as the 6th respondent acted as Managing Partner and involved in day to day business activities and all other technical, administrative, commercial activities on behalf of the erstwhile firm as is evident through Clause Nos. 10, 11, 12 of partnership deed and also considering 'NOC' given by the other partner to use experience gained by the firm for 23 any business in this sector run by them as there are only two partners.

Learned counsel would further submit that the allegations of petitioner about non-existent commercial history and irrelevant tax returns submitted are baseless and there is no need of exercise to check the commercial history as nowhere the NIT terms and conditions demand it and also the work which is called for tender is purely labour-oriented and all the required special T & P, consumables and spares will be supplied by TSGENCO free of cost as per Clauses 61 & 62 of general terms and conditions of NIT bid documents. It is further submitted that it is foolish allegation raised by petitioner with his lack of knowledge as no sole proprietary firm possesses separate PAN card number, IT returns, but it is the self PAN number and IT returns of proprietor which will be considered for such sale proprietary firm. It is submitted that petitioner is trying to blame the 6threspondent without knowing all the facts as stated above for which he should be prosecuted under law. He would further submit that petitioner alleging that no notice was sent regarding amendment through corrigendum is false and trying to place the blame on the respondents on baseless grounds. Corrigendum issued in e-procurement platform in which NIT No.e-03 is published, and on the same moment all 24 the bidders who were invited to participate, will get corrigendum information as alert message through phone and through registered e-mail and the same is visible in the e-procurement platform against this tender, rather than this no separate notice will be issued to any bidder in e-procurement system (as per the clauses 2.2 and 12.1 of schedule-l of NIT document). It is submitted that from the above, it is evident that petitioner is trying at every moment to blame the respondents on unreasonable grounds which is leading to make impact on tendering authorities. It is completely conflict nature of petitioner as making the allegations recurrently without having sufficient knowledge about the e-tendering system. He would further submit that petitioner is raising the allegation unnecessarily regarding corrigendum as "This has been done to benefit and favour of 6threspondent" in paral4 of writ affidavit and the same is completely false and baseless. It is very clear that tendering authority has right to modify/amend the conditions as per Clause 24 (a) & (b) of summery sheet of bid document. If petitioner has any objection regarding tender conditions, he has to mention in the statement of deviations, in the absence of which it will be construed that tenderer accepted all terms and conditions as per tender specification as per Clause 2.4 of schedule -1 of bid document. Petitioner had many 25 ways to represent his objections regarding terms and conditions before submission of tender, but he submitted his bid by accepting all the terms and conditions of NIT without any deviations duly signed on relevant bid documents (schedule -III) and became unsuccessful in bidding, then started to raise the allegations regarding tender conditions as they are modified by the tendering authorities to make favour to me, on baseless and unethical grounds which is completely false and unfair. With the facts revealed above, it is clearly evident that petitioner raised allegations regarding the above only in frustration due to unsuccessful in bidding, the same is invented for the purpose of this Writ Petition. In continuation to the above, learned counsel submits that if the eligibility criteria before the corrigendum exists without modification, petitioner's firm and the other one might not be qualified as they are having the similar type of experience particularly in ISGENCO ( as mentioned in the NIT conditions) for only one or two years, petitioner's firm is having the similar type of experience in TSGENCO for only two years and petitioner furnished that " has been executing similar works every year in the past several years". In counter petition in para no.10 will not meet the eligibility which states that three years experience in TSGENCO and there is no substantial proof submitted for the same. In other words, the 6th respondent 26 would be eligible by using the experience gained as the Managing Partner of erstwhile partnership firm. The facts revealed above disclose the intention of petitioner in framing a false story around the imagined situations to make favourable to him on unethical grounds in Writ Petition which is liable to be dismissed on this ground alone.

It is argued that under the facts and circumstances explained above, it is clear that official respondents have not made any favouritism or benefit to the 6th respondent, as alleged by petitioner In the Writ Petition, there is no public interest and not any substantial proofs for the allegations made regarding mala fides and arbitraries except grudge on official and unofficial respondents and the rivalry with the 6th respondent as a competitor, hence the Petition is not maintainable as per law.

11. Petitioner filed a reply-affidavit to the counter filed by the 6th respondent, stating that the 6th respondent quoted 36% less than the estimated rates and stood L1, is unsubstantiated, irrelevant and deviating the case. The entire premise of petitioner's case is based on substantiated claim that the 6threspondent had uploaded false and misleading experience certificates which are in the name of M/s Mars engineers and Erectors, a partnership firm which ceased to exist way back in 27 2016-17, therefore significant loss of experiential contribution had occurred. It is a settled law that the new firm or entity must be a complete takeover of previous firm along with its assets and liabilities and no experiential contribution of the erstwhile firm must be lost or left behind on its transition. The 6threspondent sought clarification with respect to uploading the experience certificates of M/s Mars Engineers and Erectors in the name of M/s Mars Engineers and Enterprises is concocted, false and miserably suffers from lack of substantiation. The validity of experience certificates of M/s Mars Engineers and Enterprises is very much relevant as the same were dated back to 2017 whereas the work experience mandated by the NIT must be prevalent between the years 2021-2022. The 6threspondent is intentionally denying the fact which is a matter of public record. The complete absence of even a single material paper to substantiate their stand clearly portrays the viciousness of the 6threspondent's aspersions. As far as consideration of experience is concerned, the 6threspondent is deliberately silent about their inactivity since 2017 for more than 5 years and tacitly trying to hide behind the veneer of inapplicable and unrelated judgments. Now after silence of more than 5 years during sans any experience whatsoever, the respondent cannot be allowed to seek cover under alleged experience dating back to 28 2017. Further, M/s Mars Engineer and Enterprises lacks any commercial history whatsoever and the firm has been floated to enable collusion with 4th respondent. It is submitted that original NITs for bowl mills required in clause No 27(b) that "the contractor shall furnish their copy of PAN Card and copy of latest income tax returns for a period of 3 years i.e., From 2019- 20 along with proof of receipts failing which their e-tender will be summarily rejected." There is no way in which the 6threspondent would have been able to submit such documents so the respondents have most arbitrarily issued a corrigendum to the NITs modifying the said clause and reducing the stipulated 3 years period to 1 year period i.e., 2021-22. Further, another corrigendum was issued to NIT modifying Clause 2(I)(1) in Section II to say that "Copies of previous work orders for Similar works/Certificate showing experience in similar type of work on any XRP bowl mills in TSGENCO, self-declaration of relevant technical skills, etc." This has been done only since it was realised that Mars Engineering & Enterprises would not qualify for lacking the requisite experience. Petitioner realised these factors at the later stage and such an illegal collusion could not be contemplated prior to issue of corrigendum but the action preceding the corrigendum clearly shows that this has been done to benefit and favour the 6th respondent. The 6th 29 respondent is taking every foul opportunity to escape answering as to how he could claim the experience of a firm that ceased to exist 5 years ago and has no connect whatsoever with the Mars Engineering and Enterprises.

12. It is an admitted fact that in April 2023, petitioner was offered to participate in a single-part limited tender concerning EPC works in Unit IV of BTPS vide NIT. No e03/2023-24/SE/STAGEII/BTPS/D.No.78/22-23, dated 18.04.2023 for the work of "Preventive/Periodical Maintenance Works on Mills for the FY 2023-24" for an estimated procurement value of Rs.10,75,626/-. The tender has only a single part i.e., price bid and does not have a prior prequalification or technical evaluation stages. Similarly, Mars Engineering & Enterprises, a sole proprietorship with the 6th respondent as its proprietor was also offered to participate in the said tender issued. The mandatory documents mentioned in the tender Notification are for the purpose of supporting but not for qualification criteria since the nature of tender invited is limited single stage commercial bid for which no pre- qualification is required. The same fact is known to petitioner, as such the allegations levelled against Respondents 2 to 5 that they have not issued any reply to the letter dated 03.06.2023 wherein petitioner is informing that the documents submitted 30 by the 6threspondent are misleading, deceptive and inconsonant and also the 6threspondent is not eligible because the Firm owned by them is having sole Proprietorship. It is pertinent to mention that petitioner himself has knowledge that nature of tender is only a limited one and no pre-qualification is required. Further, it is submitted that Clause2 of Section-II titled "Special tender conditions" in NIT dated 18.04.2023 which was issued on e-procurement platform vide tender ID 408740, dated 28.04.2023 and the same was amended by the corrigendum on 01.05.2023. In the said Tender Notification and in the corrigendum as well, it was not stipulated to upload the experience for 2020-21, 2021-22 and 2022-23 but contained placeholder to upload the previous experience document/documents. Further it is submitted that either any firm or individual contractors could participate in the tendering process. There are no constraints for individual contractors to participate in the bidding process. These facts are evident from the documents submitted by petitioner himself before this Court. That after receiving the letter dated 30.06.2023, the 2nd respondent internally enquired about the allegations raised by petitioner and after knowing the factual aspects, advised the officers to follow the procedure of tender in accordance with the notification issued.

13. The nature of tender is only limited i.e. price bid only, no past experience is required but only who quotes the lowest price such bidder would become the L1. Since the 6th respondent quoted far lesser amount than petitioner, he had become the successful bidder. According to the 6th respondent, Income tax clearance certificate is either required from the firm or individual contractor. The 6th respondent submitted Income tax return for the financial year 2022-23 and commercial history of tenderer is not the criterion in finalizing lowest bidder. As per TSGENCO Standard general terms and conditions, tenderer should have experience in executing the similar type of work, at least once in the last 6 financial years including present financial year. In this regard, it is to submit that corrigendum dated 01.05.2023 was issued to the original NIT dated 18.04.2023wherein similar experience in any type of bowl mills was informed to be considered. In fact, corrigendum was issued in the interest of the organization. It is to submit that NIT dated 18.04.2023 was published on e-procurement platform on 28.04.2023(Friday) and corrigendum was published on 01.05.2023(Monday) without any delay or pre-determination. As per tender document "TSGENCO reserves the right to amend or modify the tender and its conditions on or before schedule closing date, under intimation to the tenderers". The 32 corrigendum was delivered to all the limited tender agencies including petitioner on e-procurement platform, Government of Telangana. The above corrigendum was issued for better participation and competition among the agencies to protect the interests of TSGENCO. It is an admitted fact thathad the corrigendum was not issued, even petitioner was also not eligible to participate in the said Tender since he had only 2 consecutive years of maintenance experience.

14. As rightly contended by the learned counsel for Respondents2 to 5, long association of petitioner with the2ndrespondent is not the criterion for awarding work on competitive bids. The 4th respondent has carried out tendering of NIT No.e-02/2023-24/SE/Stage-II for Unit-III mill works and not for Unit-I & Unit-II. The tendering authority and the tender numbers are misrepresented by petitioner to mislead this court, the contention of petitioner that authorities acted out of legal limits and they are acting arbitrarily and shown favouritism totally cannot be accepted in the background of vivid facts emanating from the record. The official respondents have acted in accordance with law and the lowest price bidder was awarded the work as per terms and conditions of notification. The tendering process was conducted on e-Procurement platform (as per Central Vigilance Commission guidelines) and in a 33 transparent way. The official respondents adhered to the organization rules and procedures and acted with a bona fide, rational and legitimate way in the tendering process. The provisional service work order dated 16.06.2023 was issued to L1 tenderer M/s Mars Engineers and Enterprises. Subsequently, M/s Mars Engineers and Enterprises started maintenance works on Mills from the same date. The 6th respondent is the sole proprietor for MARS ENGINEERS AND ENTERPRISES and managing partner of erstwhile partnership firm MARS ENGINEERING AND ERECTORS which carried out number of works in APGENCO and TRANSCO for the past two decades up to the satisfaction of field engineers and acquired lots of experience in carrying out the similar nature of works and also been carrying out crucial works which are critical than the subject works in XRP- 943 BOWL MILLS in BTPS at present as sole proprietor in the name and style of MARS ENGINEERS AND ENTERPRISES. By considering the past experience and present status of sole proprietary firm, the sole proprietor of MARS ENGINEERS AND ENTERPRISES can be entitled to utilize past experience of erstwhile firm in tendering process as per above referred construes and there is no need of experience in the same name as the bidding firm as held by the Hon'ble Supreme Court in New Horizon Ltd. Vs. Union of India. 34 Hence, it is evident that the 6th respondent being the sole proprietor of MARS ENGINEERS AND ENTERPRISES is liable to use past experience of erstwhile partnership firm MARS ENGINEERING AND ERECTORS as the 6th respondent acted as Managing Partner and involved in day to day business activities and all other technical, administrative, commercial activities on behalf of the said firm as is evident through Clauses 10, 11, 12 of partnership deed and also considering the 'NOC' given by the other partner to use experience gained by the firm for any business in this sector run by them as there are only two partners. In the case of New Horizon Ltd. Vs. Union Of India, the Supreme Court had held at Para 25 as under:

"25. Even if it is assumed that the requirement regarding experience as set out in the advertisement dated April 22, 1993 inviting tenders is a condition about eligibility for consideration of tender, though we find no basis for the same, the said requirement for regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualize where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. that does not mean that the earlier experience of one of the partners of the cannot be taken into consideration. Similarly, a company incorporated under the companies Act having past experience can undergo reorganisation as a result of merger of amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganized company. It would not be the purport of the requirement about experience that the experience of the company which has merged into the reorganized company cannot be taken into consideration because tender has not been submitted in its name and has been submitted in the name of the organized company which does not have experience in its name. conversely there may be a split in the company looking after a particular field of the business of the company forma new 35 company after it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field.

The same view is taken into consideration in many judgments delivered by the High Court of Andhra Pradesh in S. Kireetendranath Reddy Vs. A.P. Transco, Vidyut Soudha 8, Avula Contractions Pvt. Ltd. Vs. Senior Divisional Electrical 9, Hon'ble High Court of Madhya Pradesh in C.K. Asati Vs. Union of India 10, Samruddha Buildcon Pvt. Ltd. Vs. Indore Development Authority and the Hon'ble High Court of Bombay in Sagar Lookouts Vs. Maharastra Housing and Area 11 and M/s Ims Bhatia Transport Vs. The Union of India 12. Therefore, the contention of petitioner that the 6th respondent is ineligible to participate in the tender process is not tenable and accordingly the said contention is hereby rejected.

15. This Court also feels that petitioner unnecessarily mounted undue pressure upon the answering respondents and 8 1999(5) ALD 398 9 1993(3) ALD 105 10 AIR 2005(4) MP 96 11 2022 SCC Online Bom 10434 12 2021 SCC online Bom 3675 36 since the tendering process is lawful, no higher authorities have shown any favouritism to the 6th respondent. Petitioner has levelled frivolous and baseless allegations against the official respondents who acted legitimately during the tender process and petitioner had approached the Court by suppressing all material facts with ill-intention to harass the respondents. It is borne out by record that since this Court has not granted any interim stay with respect to awarding of work, so far, the 6th respondent had finished 80% of work and at this juncture, interference of this Court in any manner is unwarranted and the same is also countenanced by the decision in N.G.Projects Limited(supra), wherein the Hon'ble Supreme Court at Paras 16 to 23 held as under:

[16] In Galaxy Transport Agencies v. New J.K. Roadways,2020SCCOnLineSC 1035 a three-judge bench again reiterated that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. It was observed as thus:

"17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word "both" appearing in Condition No. 31 of the N.I.T. For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.

18. Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on 37 the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in JagdishMandal v. State of Orissa, 2007 14 SCC 517, this Court noted:

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound".

When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power 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";

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."

23. In view of the above judgments of this Court, the 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. 38

The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."

16. In the considered opinion of this Court,the entire process of tendering is performed legally and without any arbitrariness and there is no violation of principles of natural justice. The tendering process was conducted on e-procurement platform (as per central vigilance commission guidelines) and in a transparent way. Petitioner quoted 5% less whereas the 6th respondent quoted lowest rates with 36% less than the estimated value and stood L1, as such he became successful bidder. The official Respondents are strictly in consonance with the rules and procedures, and acted with a bona fide, rational and legitimate way in the tendering process. The official respondents have acted in accordance with law and the lowest price bidder was awarded with the work as per the terms and conditions of the tender notification.

17. Further the Hon'ble Apex Court in the case of N.G.Projects Limited vs. Vinod Kumar Jain & Others [(2022) 6 SCC 127] at Para 23 held that 'the approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision- making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.'

18. This Court also opines that petitioner approached with unexplained delay; as such there is no need to interfere in the light of the judgments of Hon'ble Apex Court mentioned supra and also more particularly in the matters pertaining to awarding of contracts pursuant to tender process. The tender process adopted and awarding of work to the 6th respondent is 40 not mala fide or intended to favour someone and the decision made by official respondents is by acting reasonably and in accordance with conditions stipulated in the Tender Document, therefore the decisions cited by the counsel for the petitioner are not applicable to the facts of the present case.

19. In the result the Writ Petition is dismissed. No order as to costs.

20. Consequently, Miscellaneous Applications, if any shall stand closed.

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NAGESH BHEEMAPAKA, J 05th February 2024 ksld

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Telangana High Court